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No 50-50 wealth share after divorce, says court

Gold diggers: Better think twice.

Only what a spouse has contributed to the marriage – be it the wife or the husband – can he or she walk away with upon divorce, the High Court declared yesterday.

Justice John Mativo, in a judgement that reignites the debate on the question of division of matrimonial wealth, said the Constitution recognises equal worth and equal importance of parties in a marriage.

But that does not guarantee a 50-50 for those who think marriage is their ticket to equal sharing of wealth.

“The beneficial share of each spouse as the law on the division of matrimonial property stands in Kenya ultimately depends on the parties’ proven respective proportions of the financial contributions either direct or indirect towards the acquisition of the property,” the judge said.

The Federation of Women Lawyer (Fida) had challenged the constitutionality of Section 7 of the Matrimonial Properties Act, alleging it was discriminatory.


Fida had alleged the section offends Article 45 ( 3 ) of the Constitution, which provides that parties to a marriage are entitled to equal rights at the time of marriage, during and in the dissolution phase.

The organisation also argued that the law creates unfair discrimination against women, saying they suffer most after dissolution of marriage.

Read : How courts distribute matrimonial property

But Justice Mativo said the organisation was inviting court to open the door for a party to get into a marriage and walk out with more than they deserve.

He said the law does not offend any of the provisions of the Constitution as alleged by Fida, nor does the section contradict any of the provisions of the Act.

Mativo said the Act recognises monetary and non-momentary contributions.

Reacting to the decision, lawyer John Chigiti said, “Many times a spouse who is not contributing financially is normally the spouse who is contributing indirectly in form of taking care of children, estates, properties and love.”

Lawyer Dunstan Omari said spouses should be document each transaction in case of a divorce to prove their investment in the marriage. Fida said it will appeal the court’s decision.

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