Supreme Court Ruling on Divorce

The Supreme Court of Kenya issued a landmark ruling in January 2023 that clarified the division of matrimonial property upon divorce. The court’s primary determination was that a 50:50 split of assets is not automatic upon the dissolution of a marriage.

Key Principles of the Ruling

• No Automatic 50:50 Division: The court ruled that Article 45(3) of the Constitution, which guarantees equal rights to spouses during and after marriage, does not mean an automatic equal share of property. Equality means both parties have the same rights to seek their fair share, not a default half-split.
• Proof of Contribution: Matrimonial property is divided based on each partner’s proven contribution toward its acquisition or development. A spouse does not acquire a beneficial interest in property solely by the fact of being married.
• Direct vs. Indirect Contributions: The court recognizes both monetary (financial investment) and non-monetary contributions. Non-monetary contributions include:
  • Domestic work and management of the matrimonial home.
  • Childcare and companionship.
  • Farm work and management of family businesses.
• Individual Wealth: Each spouse should ideally leave the marriage with the wealth they individually acquired, provided it does not fall under the legal definition of matrimonial property or lack a contribution from the other spouse.

Context of the Case

The ruling was delivered in Supreme Court Petition No. 11 of 2020 (Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto). The High Court had originally awarded the wife only 30% of the matrimonial home and 20% of rental units. While the Court of Appeal had increased this to 50%, the Supreme Court clarified that such a ratio must be backed by evidence of contribution rather than an assumed right.

Legal Frameworks Cited

• Article 45(3) of the Constitution (2010): Guarantees equal rights to spouses at the time of marriage, during marriage, and at its dissolution.
• Matrimonial Property Act (2013): Defines matrimonial property and outlines that ownership vests in spouses according to their respective contributions.
• Children Act (2022): Directs that the “best interests of the child” must guide all custody and maintenance decisions following a divorce.