On 27th January 2023, The Supreme Court raised the bar once again in division of matrimonial property in Kenya via the case of JOO v MBO Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR) [ 2023].

The Supreme Court cited with great concern the misinterpretation of Article 45(3) of the Constitution which provides for equality to parties to a marriage, at the time of marriage, during marriage and at the time of dissolution of the marriage.

By giving clarity to the provision of equality in Article 45(3) of the Constitution, it was held that it (the provision) did not entitle the court to vary the ownership of the property belonging to either party as this was in clear contravention of Article 40 (1) and (2) of the Constitution which protects the right of persons to own property.

The maxim ‘equality is equity’ had never been truer. Equity is an important principle when it comes to matrimonial property since what is fair as it related to equity is not a question of the quantitative contribution by each party but rather the contribution by any party in any form, whether direct or indirect.

Equality means that during dissolution of a marriage, each party to a marriage got a fair share of the matrimonial property based on their contribution.

A party is to prove contribution either directly or indirectly. The Supreme Court enumerated such direct or indirect acts to include;

a. Paying part of the purchase price of the matrimonial property.

b. Contributing regularly to the monthly payments in the acquisition of such property.

c. Making a substantial financial contribution to the family expenses so as to enable the mortgage installments to be paid.

d. Contributing to the running of and welfare of the home and easing the burden of the spouse paying for the property.

e. Caring for children and the family at large as the other spouse worked to earn money to pay for the property.

In a nutshell, marriage between parties does not automatically result in common ownership or co-ownership of property. The spouse has to prove contribution either directly or indirectly to the acquisition of the disputed property which in our case was a loan application forms.