The number of Kenyans seeking divorce has been alarming as it increases every year. This suggests an upheaval in families.
Statistics from the courts covering 2013 to 2022 show that there is a rise in divorce cases arising from the character of the partners. As of 2022, the divorce and separation cases stood at 5,611 having increased from 2013 which was 1,194.
In connection to this, the Kenyan Supreme Court ruled on Friday that married couples are not automatically entitled to equal shares of matrimonial property in case of divorce. This precedential ruling stated that upon divorce each spouse should leave their marriage with the wealth each individual acquored themself.
The Supreme Court of Kenya has ruled that spouses are not authorized to share the matrimonial assests equally, 50/50, after divorce.
The Courts further elaborated that distribution of property is solely based on what the individual has been bringing to the table.
The Court also stated that while Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during the 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 percent share by fact of being married.
The Supreme Court’s ruling provides clarity on the criteria for determining the distribution of matrimonial property in cases filed before the Matrimonial Property Act came into effect, and emphasizes the importance of proving contribution in such cases.
"The Supreme Court ruling on sharing of properties during divorce needs careful examination. Contributions made by women need to include unpaid care work and psychological support," argued Margaret Kobia, a Kenyan Politician.
In my opinion, Professor Margaret Kobia is missing a point here on the Supreme Court ruling.
Does that mean the man did not contribute, in one way or another, to the care work or even offer psychological support to the woman when they were still living together?
The Chief Justice, Martha Koome, was clear on her ruling.
The Supreme Court ruled that any property acquired when you were together are the ones subject to sharing. Any other property acquired beyond this period cannot be shared since they were acquired individually and not jointly.
As you bring the issue of care service to the man, the man equally gave these care services to the woman, and on such occasions such care work cannot be quantified at any specific time.
Lately, there has been cases where people are being caught having an affair with someone outside their marriage. Some do not end up well as they and their 'mpango wa kando' are found dead. This can be a leading factor to the high rate of divorce cases being filed.
The act of infidelity is causing many marriages to get dissolved.
In addition to this, the Supreme Court also made it clear to the citizens that there is no marriage like 'Come We Stay.' Even if the partners have lived together for long they still qualify as unmarried.
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