Supreme Court Ruling on Marriage and Property: What You Need to Know

When a marriage ends, who gets what? This is a question that many couples face, and in Kenya, the Supreme Court has played a major role in shaping the answers.

At the Supreme Court at 12 Conference Law Lecture Circuits, Hon. Lady Justice Njoki Ndung’u, FCIArb, CBS, gave a powerful talk on Equal Rights in Marriage and How Matrimonial Property is Divided.

Let’s break it down in a simple way.

What Does the Law Say?

Kenya’s Constitution (Article 45(3)) provides that both spouses have equal rights in marriage—before, during, and after divorce. The Marriage Act also supports this, making it clear that marriage is a voluntary union with equal rights. But does this mean that property is automatically split 50/50 after divorce?

Not quite.

The Big Debate: Equal vs. Fair

When a marriage ends, courts have to decide how to divide property. Some argue that it should be a straight 50/50 split. Others believe that property should be shared based on how much each person contributed—whether through money, housework, childcare, or other support.

Justice Ndung’u’s presentation highlighted how courts are moving towards a fair division, rather than a fixed equal division. That means each spouse’s contributions—both financial and non-financial—are taken into account.

Real Cases That Shaped the Law

1. Echaria v. Echaria (2007) – The court ruled that if a property is registered in one spouse’s name, the other spouse must prove their contribution (either money or effort) to claim a share.

   
   

2. JOO v. MBO (2021) – A husband and wife were married for 18 years and during that time, they bought land, built a family home, and put up rental houses. When their marriage ended, they had to decide how to divide the property.

   1. High Court Ruling: The court looked at the wife’s contributions and decided she should get 30% of the home and 20% of the rental properties.

   2. Court of Appeal Decision: The wife appealed, arguing that her long marriage and contributions deserved half of everything. The Court of Appeal agreed and ruled that she should get 50% of the property.

   3. Supreme Court Clarification: The husband then took the case to the Supreme Court, which said that while both spouses have equal rights, this does not mean an automatic 50/50 split. Instead, each spouse must prove what they contributed—whether through money, labor, or other forms of support.

      
      

   Key Takeaway:

   The Supreme Court ruled that property should be divided fairly based on contributions, not just marriage duration. So, even in a long marriage, you need proof—financial records, testimonies, or other evidence—to show what you put into the property.

   
   

Why This Matters to You

1. No Automatic 50/50 Split – If you’re married, don’t assume that property will be divided equally. The court looks at who contributed what.

   
   

2. Non-Monetary Contributions Count – If you’re a homemaker, your work still has value in court.

   
   

3. Keep Records – If you are investing in property or supporting your spouse’s career, keep receipts, documents, and evidence of your efforts.

   
   

What’s Next?

The Supreme Court’s decisions show that equality doesn’t always mean 50/50, but rather a fair share based on effort and contribution. If you’re married (or planning to be), it’s important to understand how these laws work.

Justice Ndung’u’s insights remind us that laws are evolving to ensure fairness and justice, helping both men and women get what they deserve when a marriage ends.

Want to learn more about family law in Kenya? Stay tuned for more legal breakdowns in everyday language!