A High Court decision has sent a clear message to couples nationwide: the mere existence of a marriage does not automatically entitle a spouse to half of the property upon its dissolution. The ruling firmly establishes that ownership is determined by proven contribution, not the marital status itself.

This judgment directly impacts how Kenyans must now view their financial roles within a marriage and the potential outcomes of a divorce. It dismantles the widely held assumption of an automatic equal partnership in property, forcing a more critical look at how assets are acquired and who contributes to them, whether in cash or kind.

Contribution is King

In a detailed judgment delivered at the Milimani Family Division, Justice Helene Namisi emphasized that estranged spouses have no claim to wealth acquired by their former partners after separation. The case involved a woman, Ms AW, who sought an equal share of all property registered in her ex-husband's name, including assets he acquired years after they separated in 2013. The court dismissed her claim, noting that the economic partnership of a marriage effectively ends when a couple separates, not when the divorce is formally finalized. "The petitioner cannot reap where she did not sow," Justice Namisi stated, clarifying that equality in marriage, as enshrined in the Constitution, is not a "mathematical straitjacket" for a 50:50 division.

The ruling builds on a foundation set by Kenya's superior courts. The Supreme Court in 2023 and the Court of Appeal have consistently affirmed that Section 7 of the Matrimonial Property Act is the guiding principle. This section requires that property be divided based on the proven contribution of each spouse. This includes:

• Monetary contributions: Direct financial input towards acquiring assets.
• Non-monetary contributions: This can include domestic work, childcare, companionship, and management of the family business or home.

A Contentious Legal Landscape

The legal interpretation has been a battleground for years. The Federation of Women Lawyers (FIDA-Kenya) has previously challenged Section 7 of the Matrimonial Property Act, arguing it is unconstitutional and disadvantages women whose non-monetary contributions are often difficult to quantify and are systemically undervalued. However, courts have upheld the law, with one High Court ruling suggesting that an automatic 50-50 split could create a loophole for "gold diggers." Legal analysts note that while the law recognizes non-financial input, the burden of proof remains a significant hurdle for many women.

This latest judgment reinforces that the days of assuming an automatic equal share are over. For Kenyan couples, it underscores the importance of documenting contributions and understanding that upon divorce, courts will meticulously balance the ledger of a life lived together, rather than simply splitting everything down the middle. As Justice Namisi concluded, the process strives for fairness, not just a simple fraction.