No more automatic 50-50 sharing of marital property after divorce, court rules

There will be no more automatic 50/50 sharing of marital properties when couples part ways after the dissolution of their marriage.

This is after the Supreme Court’s five-judge bench led by Deputy Chief Justice Philomena Mwilu on Thursday ruled that each party should only get the property he or she acquired during the marriage even though one partner may get more depending on their contribution to the acquisition of the marital wealth.

The Supreme Court declared the 50/50 rule for the division of matrimonial property was not entirely applicable and did not constitute a redistribution of rights to property.

“While Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during dissolution of a marriage, such equality does not mean the re-distribution of proprietary rights or an assumption that spouses are automatically entitled to a 50% share by the fact of being married,” the Supreme Court declared.

According to the Supreme Court, a fair formula for sharing matrimonial property after divorce should be implemented according to the circumstances of each individual case.

“What amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at dissolution of a marriage and whether the same can be achieved by a fixed means of apportionment at a 50/50 ratio should be done in light of the circumstances of each individual case,” the court added.

The five-judge bench held that equality in a marriage does not translate to equal sharing of properties at the dissolution of the union rather the allocation of matrimonial properties ought to be based on each party’s contribution towards the acquisition of the properties and documentation of the same.

The ruling somewhat serves to discourage people from venturing into the institution of marriage and playing no role in the acquisition of properties only to receive their 50 per cent share at the dissolution of the marriage.