Article 45(3) of the Constitution provides that parties to a marriage are entitled to equal rights at the time of the marriage during the marriage and at the dissolution of the marriage. This article clearly gives both parties to a marriage equal rights before, during and after a marriage ends. It arguably extends to matrimonial property and is a constitutional statement of the principle that marital property is shared 50-50 in the event that a marriage ends.
However pursuant to Article 68 parliament is obligated to pass laws to recognize and protect matrimonial property, particularly the matrimonial home. Such law will no doubt direct a court when or after granting a decree of annulment, divorce or separation, order a division between the parties of any assets acquired by them during the coveture.
The Matrimonial Property Act, 2013 which received assent on 24th December 2013 and commenced on 16th January 2014. That is an important development in the law of Matrimonial Property for this country. Section 7 is of paramount significance. It provides:-
“7. Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
Contribution is defined by Section 2 to mean monetary and non-monetary contribution. And non-monetary contribution includes:-
a. Domestic work and management of the matrimonial home;
b. Child care;
d. Management of family business or property; and
e. Farm work;
“Family business” means any business which-
a) is run for the benefit of the family by both spouses or either spouse; and
b) generates income or other resources wholly or part of which are for the benefit of the family;”
By recognizing that both monetary and non-monetary contribution must be taken into account, it is congruent with the Constitutional provisions of Article 45 (3) of The Constitution that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
At the dissolution of the marriage each partner should walk away with what he/she deserves. What one deserves must be arrived at by considering her/his respective contribution whether it be monetary or non-monetary. The bigger the contribution, the bigger the entitlement. Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then, the Courts should give it effect. But to hold that Article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property. That surely is oppressive to the spouse who makes the bigger contribution. That cannot be the sense of equality contemplated by Article 45(3).
In Division of matrimonial property that right is safeguarded by vesting in each spouse ownership according to their respective contributions be it monetary or non-monetary.
case law available on http://kenyalaw.org/caselaw/cases/view/94613/