No Automatic 50/50 Split: Court Says Property Sharing Depends on Contribution

The Court of Appeal has upheld Section 7 of the Matrimonial Property Act, 2013, confirming that marriage equality is determined by each spouse’s contribution rather than an automatic 50:50 property split. The ruling came after the Federation of Women Lawyers Kenya (FIDA-Kenya) lost its case challenging the section, which it argued violates the constitutional principle of equality in marriage under Article 45(3).

FIDA-Kenya’s Civil Appeal No. 238 of 2018 sought to have Section 7 declared unconstitutional. The organization argued that the law disadvantages women whose non-monetary contributions, such as domestic work, childcare, and emotional support, are often undervalued and difficult to measure against monetary contributions typically made by men.

Why Did the Court Reject FIDA-Kenya’s Petition?

Through the appeal, FIDA-Kenya proposed that property acquired during marriage should be owned equally by both spouses, regardless of who financed it. The organization called for an amendment to the Act that would guarantee equal ownership, suggesting that such equality better reflects the spirit of the Constitution. The proposal read:
“Subject to section 6(3), ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce or their marriage is otherwise dissolved.”

However, the Court of Appeal dismissed the appeal, maintaining that Section 7 of the Act is consistent with the Constitution. The judges emphasized that the law already recognizes both monetary and non-monetary contributions, including domestic work, managing family businesses, and providing companionship.

What Does the Ruling Mean for Married Couples?

Citing the Supreme Court’s decision in J.O.O. vs M.B.O., the appellate judges clarified that equality in marriage does not translate to an automatic 50:50 split of property after divorce. Instead, it requires fairness, where each spouse receives a share that reflects their overall contribution to the marriage. The inclusion of non-monetary contributions in the law, the court noted, was a deliberate effort by lawmakers to address historical injustices that devalued women’s unpaid domestic labor.

The Court concluded that Section 7 does not violate any constitutional provisions and therefore remains valid. “It is my conclusion that the impugned section does not offend any of the provisions of the Constitution as alleged, nor does the section contradict any of the provisions of the act. Having so concluded, I find and hold that the Petitioner does not qualify for any of the reliefs sought in this Petition. In the circumstances, I dismiss this Petition with no orders as to costs,” the court ruled.

This decision means that in cases of divorce or separation, property will continue to be divided based on each spouse’s contribution, whether financial or non-financial, ensuring that fairness, not automatic equality, remains the guiding principle in matrimonial property disputes.

By Lucky Anyanje