The Supreme Court is set to develop guidelines for distribution of matrimonial property between divorced spouses in a bid to curb endless legal squabbles between ex-husbands and ex-wives after the collapse of their marriages.
The apex court is expected to settle a long-standing question on whether spouses should split their matrimonial property equally upon dissolution of marriage or the distribution should be based on each individual’s contribution towards acquisition of assets.
Another issue to be determined by the Supreme Court is whether equality means 50:50 sharing or each party getting property according to his or her contribution.
Further, since some matrimonial disputes were filed in court before the 2010 constitution, the Supreme Court will clarify the uncertainty on which law is applicable in resolving such disputes. The judges will determine whether courts should follow the new legal regime of family laws by applying the provisions of Article 45(3) of the constitution and the Matrimonial Property Act 2013, which underpin the principles of equality.
With regard to a matrimonial property case filed before the promulgation of the 2010 constitution, the judges will clarify whether such a dispute should be determined under section 17 of the old 1882 Married Women Property Act of England that was in force at the time.
Article 45(3) of the constitution provides that parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at the dissolution of marriage.
On the other hand, Section 17 of the Married Women Property Act of England gave judges discretion and a free hand to decide on what property rights each spouse had in the marriage.
It provided that “in any question between husband and wife as to the title to or possession of property, either of them may apply for an order to the High Court or a County Court and the judge; may make such order with respect to the property in dispute…as he may think fit.”
The petition at the Supreme Court arose from a decade-old fight between Mr Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori. Mr Ogentoto took the dispute to the Supreme Court after the Court of Appeal ordered that the house in which he had lived with his ex-wife of 18 years and the rental units be shared equally between them at the ratio of 50:50.
In the judgment dated February 23, 2018 appellate judges Alnashir Visram (retired), Wanjiru Karanja and Martha Koome (now Chief Justice) set aside the High Court’s judgment that had awarded Ms Bosibori a share of 30 per cent of the house and a 20 per cent of the rental units. Both the house and the rentals are located in Tassia Embakasi, Nairobi. The dispute started at the High Court in May 2010.
While Ms Bosibori wants the Supreme Court to uphold the decision of the Court of Appeal and find that divorced spouses should share matrimonial property equally on 50:50 basis, Mr Ogentoto says both the High Court and the Court of Appeal erred in giving his former wife a share of the assets. He says the share given to his ex-wife were inordinately high since it had been established that she had not made any monetary contribution and she had contributed to the breakdown of the marriage. Mr Ogentoto and Ms Bosibori married in 1990 under Kisii customary laws and formalised their union under the Marriage Act (now repealed) on August 30, 1995.
They had two children and lived together until 2008 when Mr Ogetonto filed for divorce. A decree absolute was later issued on October 15, 2015. The basis of their divorce was alleged cruelty and desertion.
At the Supreme Court, Ms Bosibori’s push for equality and the 50:50 sharing formula is enjoying backing of the Law Society of Kenya (LSK) and the Federation of Women Lawyers (FIDA Kenya), who were admitted as amici curiae (friends of the court) .
LSK told the five-judge bench chaired by Deputy Chief Justice Philomena Mwilu that, although Article 45(3) of the constitution does not provide a mathematical formula of sharing matrimonial property and does not say distribution should be on ratio 50:50, it expressly lays down foundation of equality as the starting point.