Appeals court says property should be divided according to each spouse’s contribution

The Court of Appeal ruled that Section 7 of the Matrimonial Property Act, 2013 is constitutional.

Section 7 provides that matrimonial property should be divided according to each spouse’s contribution.

The court ruled that Section 7 does not violate Article 45(3) of the Constitution, which provides that parties to a marriage are entitled to equal rights at the time of marriage, during marriage, and upon its dissolution.

“The equality envisaged under Article 45(3) does not mean that each spouse automatically walks away with 50 percent of the matrimonial property,” the court held.

“It means that both parties are entitled to fair treatment and recognition of their respective monetary and non-monetary contributions.”

The bench said the law recognizes and dignifies both financial and non-financial efforts within marriage, adding that courts are capable of assessing the value of non-monetary contributions based on evidence presented.

According to the court, equality in marriage does not guarantee equal division of property but requires fairness and equity based on contribution.

“The inclusion of non-monetary contributions in the law was a deliberate move to address historical injustices and ensure fairness in property division,” the court said.

The Federation of Women Lawyers, Kenya (FIDA-Kenya), had challenged the section on grounds that it discriminates against women and violates their right to equality under the Constitution.

FIDA had argued that requiring spouses to prove their contribution to property acquisition unfairly disadvantages women, whose contributions are often non-monetary.

The organization had urged the court to declare the section unconstitutional and order the Attorney General to amend it to provide for equal sharing of matrimonial property upon divorce, irrespective of contribution.

However, the appellate judges Gatembu Kairu and Aggrey Muchelule upheld the finding of the High Court (Mativo J., as he then was), which had in 2018 dismissed FIDA’s petition.

The Court of Appeal consequently dismissed the appeal, finding that Section 7 neither contradicts nor violates Article 45(3) of the Constitution.

“At the end of the day, therefore, we do not agree with either the appellant or the Amicus Curiae when they complained that the learned Judge fell into error when he determined that section 7 of the Matrimonial Property Act was not contrary to, or inconsistent with, Article 45(3) of the Constitution,” said the court.

“Section 7 of the Matrimonial Property Act neither violated nor contradicted Article 45(3) of the Constitution.”