For over a decade now, Kenya has made important steps towards fair division of matrimonial property through its progressive 2010 Constitution and the enactment of the Matrimonial Property Act (MPA) in 2013. Having ratified the International Convention on Civil and Political Rights, under Article 23(4) Kenya is required to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during the marriage, and at its dissolution. A perennial issue that Kenyan courts differ on is the best approach to splitting matrimonial property and the factors on which this determination should be made. As much as the MPA guides this decision making, it still leaves substantial discretion to courts. The case recently before the Kenyan Supreme Court – Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto – was an important opportunity to demonstrate the judicial treatment of this issue.
Evaluating Article 45(3) of the Constitution
A critical question the Court sought to answer was whether Article 45(3) of the Constitution automatically requires matrimonial property to be distributed at the ratio of 50:50 upon dissolution. The apex Court was thus called upon to interpret this provision by defining ‘equal rights’ of a divorced couple.
Retrospective application of the equality provision
The marriage in question was dissolved pre-2010 Constitution and the MPA. The Court held that equality, a right protected under the Constitution and international law, is inherent and indefeasible. In that regard, since the Constitution is not necessarily subjected to the same principles as ordinary legislation, nothing would preclude the equality provision from applying retrospectively. The Court relied on its previous decision in the Samuel Kamau Macharia case, acknowledging the importance of the Constitution as an effective tool in re-engineering social order.
A 50/50 Split?
Section 7 of the MPA states that ‘…ownership of matrimonial property vests in the spouses according to the contribution, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved’. Yet this provision is ambiguous as to whether a spouse’s monetary and non-monetary contributions should be considered in the distribution. Such confusion has led to conflicting decisions in courts, mainly to the detriment of women whose contributions, in most instances, are largely indirect or non-monetary. Echaria v Echaria held that a party should prove their contribution, especially where the property is registered under the other party’s name. In this case, the respondent provided evidence consisting of bank loans she had secured to pay school fees and provide for the family’s welfare through the purchase of the matrimonial home and rental units. This clearly expressed a substantial contribution which the High Court erroneously held amounted to an indirect contribution.
The Court agreed that equality during and after marriage does not mean the mathematical division of assets acquired into two halves. Matrimonial causes are dealt with on a case-to-case basis as they present different circumstances. The common law maxim, ‘equality is equity’ – as discussed in the context of distribution of matrimonial property in the landmark 1971 UK case Gissing v Gissing made reference to the principles of fairness and equality. The assessment attended to the indirect contribution towards acquisition of property, which sometimes takes time to prove and makes the proportion of contribution difficult to determine. Such contribution includes vital domestic labour, for instance childcare and the running of the home and other joint family responsibilities. However, quoting Gissing, the Court, under paragraph 95, observed that where it is clear ‘that the contributing spouse has contributed about one-quarter,’ it is not ‘helpful or right for the court to feel obliged to award either one-half or nothing’.
In upholding the Court of Appeal’s decision, the Court was of the view that, although the law recognises equality in the division of property, this does not amount to an automatic 50/50 split where this would be unfair and unconscionable. Instead, equality as equity would mean that each party at the dissolution of marriage ‘gets a fair share based on their contribution.’ Based on an analysis of the evidence, the respondent in Ogentoto was thus held to be entitled to 50 percent of the matrimonial property.
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