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The Supreme Court of Kenya has ruled that spouses are not automatically entitled to equal share of property upon dissolution of marriage.

The five-judge bench led by deputy chief justice Philomena Mwilu also ruled that, in case of a dispute the parties must show proof of contribution otherwise each person should leave the marriage with the property that he or she acquired individually.

The ruling arose from a divorce dispute between Joseph Ombogi and his ex-wife Martha Bosibori.

Ombogi took the matter 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 between on a 50:50 basis.

 “While Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during dissolution of a marriage, such equality does not mean the re-distribution of proprietary rights or an assumption that spouses are automatically entitled to a 50% share by the fact of being married,” said the apex court.

“What amounts to a fair and equitable legal formula for the reallocation of matrimonial property rights at dissolution of a marriage and whether the same can be achieved by a fixed means of apportionment at a 50:50 ratio should be done in light of the circumstances of each individual case,” the court said.

The Supreme Court’s decision will moving forward act as the guideline for the distribution of matrimonial property between divorced spouse.


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