Why There is No Automatic 50/50 Split of Matrimonial Property Upon Divorce

Lawyer Danstan Omari recently shed light on the intricacies of matrimonial property division, specifically addressing a common misconception about the equal sharing of assets.

Speaking from the Family Division of the High Court of Kenya, Omari emphatically clarified that there isno automatic 50/50 split of matrimonial property upon divorce.

The Truth About the 50/50 Split

Contrary to popular belief, Kenyan law does not mandate an equal distribution of assets acquired during a marriage. Lawyer Omari was clear:

"There is no concept that properties of marriage will be distributed 50/50%. It is not true. No law says that the properties of marriage will be distributed based on 50/50%."

Instead, the courts meticulously assess each spouse's contribution – both direct and indirect – to the acquisition and maintenance of matrimonial property.

Direct Contributions: Proving Financial Input

Omari clarified that for a spouse to claim a share of matrimonial property, they must demonstrate their direct financial contribution.

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This involves showing exactly how much money they "pumped into" the properties.

Examples of direct contributions include:

• Taking out loans from banks or Saccos.

• Earning money from businesses.

• Receiving funds from relatives.

Crucially, these contributions must be substantiated with proof. This could mean presenting bank statements, or receipts showing purchases like cement for land or funds used to buy vehicles such as a 'matatu' (public service vehicle).

Under the Marriage Act, both men and women are considered equal regarding direct contributions.

If a spouse cannot prove any financial input, they will not be allocated a percentage for direct contribution.

Indirect Contributions: Recognising Unseen Labour

The law acknowledges that contributions to a marriage extend beyond direct financial input.

This is where indirect contributions come into play, often recognising the significant, non-monetary work typically undertaken by spouses, particularly those who may not be in paid employment or work part-time.

Omari detailed various forms of indirect contribution that the court considers:

• Spousal Support: This includes providing "consort sexual comfort," boosting a spouse's self-esteem, and enhancing their social recognition in public settings.

• Home Management: Tasks such as cooking for visitors, hosting parties, and managing household staff (like house girls or boys) are recognised. Even managing domestic animals such as poultry, dogs, cats, chickens, or cows within the home counts.

• Child Rearing: The demanding and time-consuming efforts of childbearing, nursing, taking children to school, and assisting with their exams and homework are all factored in as valuable contributions.

• Support for Political Ambitions: If one spouse is a politician, the time and effort spent campaigning and securing endorsements, particularly from women voters, are also considered indirect contributions.

How Judges Apportion Shares

When a dispute over matrimonial property reaches the High Court, the judge will meticulously examine both the direct and indirect contributions made by each spouse.

Omari explained that judges will apportion percentages based on this assessment. For instance, direct financial contributions might account for 40% of the property's value (perhaps 20% for each spouse), while indirect contributions could make up the remaining 60%.

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In such scenarios, a wife, who often makes more indirect contributions, might be awarded 40% for these, with the husband receiving 20%, resulting in a total of 100% when combined with direct contributions.

Business Assets and Matrimonial Disputes

The status of companies as matrimonial property depends on ownership. If a husband and wife are the sole owners of a private commercial limited company, then it is considered matrimonial property and can be subject to division.

However, if the company has other shareholders or is limited in terms of shares by external parties, such assets fall outside the Family Division's jurisdiction and are handled by commercial courts.

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