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Supreme Court on Divorce: No 50:50 Wealth Splits

As it is the apex court, the Supreme Court ruling will now form the legal basis for distribution of matrimonial wealth among divorced couples

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The Supreme Court of Kenya on Friday, January 27 issued a precedent-setting ruling on divorce – stating that in divorce cases, each partner should exit the marriage with the property he or she acquired individually.

The Supreme Court issued the ruling in the case of Joseph Ombogi Ogentoto and his ex-wife Martha Bosibori, who have been locked in a court battle for over a decade. Ogentoto moved to the Supreme Court challenging a Court of Appeal decision to have rental units in Tassia, Nairobi as well as the house they lived in for 18 years, shared equally between them on a 50:50 basis.

The bone of contention was whether assets in divorce cases should be distributed on a 50-50 basis or on the basis of individual contributions to their acquisition. Article 45(3) of the constitution does not state distribution should be on a 50:50 basis or provide a mathematical formula of sharing matrimonial property.

Ogentoto sought the court’s guidance whether equality in distribution of matrimonial wealth as per the 2010 constitution means sharing wealth 50:50 or each party receiving assets based on his or her contribution. He maintained that both the High Court and the Court of Appeal erred in giving his ex-wife a share of the assets, arguing that she had not made any monetary contribution and also contributed to the breakdown of the marriage.

As it is the apex court, the Supreme Court ruling will now form the legal basis for distribution of matrimonial wealth among divorced couples. The ruling was highly anticipated due to its implications on divorce and wealth distribution in Kenya.

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The High Court had awarded Bosibori 30 per cent share of the house and 20 per cent of the rental units.

Bosibori wanted the Supreme Court to uphold the decision of the Court of Appeal that  divorced spouses should share matrimonial property equally on a 50:50 basis. She had in her corner the Law Society of Kenya (LSK) and the Federation of Women Lawyers (FIDA Kenya), who were admitted as amici curiae (friends of the court).

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