Can you claim your spouse’s share of pension after divorce?

“Regarding the Pension provided to the Respondent through his former employer’s Provident Fund, I agree with the Respondent’s Counsel that the Applicant cannot claim to be a beneficiary thereof. Counsel urged that the Applicant is herself a teacher by profession with a Master’s Degree and is equally pensionable. Counsel therefore, understandably wondered what will happen to her own pension when she retires.

There is merit in this submission. Counsel also raised the further credible argument that the Respondent is already retired with no other source of income, hence it would be unjust for his retirement benefits to be made part of matrimonial property. I agree. In any event, what contribution, within the meaning in Section 6 of the Matrimonial Property Act, could the Applicant have made to the Pension?”

Although Kenya’s Constitution and the Matrimonial Property Act frame how assets are divided at the end of a marriage, pension savings occupy a distinct legal space governed by the Retirement Benefits Act (RBA). This separate statutory regime is central to why pension benefits are rarely divisible in divorce, even though they were accumulated during the marriage.

The Constitution states that spouses have equal rights during marriage and at its dissolution. However, according to constitutional lawyers, equality does not mean sharing all your assets.

This is implemented through legislation such as the Matrimonial Property Act, which emphasises ownership and contribution rather than entitlement.

According to the Matrimonial Property Act, matrimonial property includes the marital home, household goods and other movable or immovable property jointly owned and acquired during the marriage.

Although pensions fall within the broad category of movable property, they are treated differently due to how they are created and protected under pension law. Legal experts argue that pension contributions are personal, even if they are made during marriage.

Victor Olao, a constitutional lawyer, says pension deductions are individual by design.

"Pensions are personal savings. Whether it’s a private scheme, the NSSF scheme, or any other scheme, whatever arrangement you have for your pension is a personal and individual contribution; it's a personal savings." Being married does not mean that you stop being you,” he says.

He argues that marriage does not dissolve personal identity or convert individual financial arrangements into communal property.
He cautions that classifying pensions as marital property would blur important legal boundaries.

"That would be like saying what's in your bank account is matrimonial property," says Mr Olao.

The lawyer adds that pension contributions come directly from personal earnings or individual financial resources, not communal funds.
"Remember, the source of your contribution is your earnings from work or other financial resources. It is not communal or joint unless you have a corporate plan for you and your family."

The RBA, which governs all registered pension schemes in Kenya, reinforces this. According to the Act, pension benefits are funds held in trust for the exclusive benefit of an identified member. Once contributions are remitted to a pension scheme, the law considers those funds to belong to the member immediately, subjecting them to the scheme's rules.

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The benefits are not treated as general property capable of assignment, attachment, or division while the identified member is alive.
According to Mr Olao, the law recognises the specificity of pension ownership from the moment of enrollment.

"Your partner cannot claim your bank account, which is why the member number, contributor, and pensioner are all specific," he says. "You need your identity card and PIN. During enrollment, it goes directly to your individual details. So, unless it is specifically a joint scheme, pensions cannot form part of matrimonial property."

Confusion often arises during divorce proceedings when spouses seek to trace contributions made during the marriage.

"When you say 'me and so-and-so bought this home,' you demonstrate your cash trail. My money came from here; this is the lump sum that I took, so I have a share of this land or house. That completes its purpose. Now, whatever is on the table is the house, not the pension,” says Mr Olao.

At that point, the court focuses on the property acquired, not the origin of the funds.

He adds that, once funds are invested in a joint asset, their source becomes legally irrelevant. "Where you got it from is no longer an issue, whether it was a pension or if you robbed someone. It doesn't matter anymore. It's just proof of contribution," he says.

The same principle applies when one spouse takes out a loan to fund a joint investment. The liability for the loan remains personal, but the contribution is recognised. For example, if pension withdrawals are used to buy a marital home, the pension ceases to be subject to division.

Consequently, the RBA does not recognise divorce as a trigger event for the payment or division of an individual’s pension benefits. Pension trustees are only permitted to release benefits in the case of retirement, withdrawal under prescribed conditions, exit from employment, or the member's death.

In the event of death, for example, benefits may be paid to the nominated beneficiaries or dependents. While the member is alive, payments are restricted to that individual.

The Act also stipulates that pension benefits are not part of a member’s estate for succession purposes until they are payable. This statutory protection is why pension administrators cannot act on divorce decrees as they do on probate or succession orders.

Even when courts recognise spousal contributions, pension trustees are legally bound by the RBA and cannot redirect benefits to a former spouse.

Ken Monyoncho, director at Enwealth Financial Services, says the distinction between matrimonial and pension law is intentional.

"Pension fund contributions are personal contributions. It cannot be given to someone who has not contributed,” he says. "We don't pay third parties. We can only pay a third party in the event of death, not divorce.”

According to the RBA, pension benefits are also non-assignable. They cannot be charged, attached, or used as security for obligations outside of the exceptions set out by law. Divorce-related claims fall outside of these exceptions and shield pension savings from division during marital dissolution.

"The moment money enters the pension scheme, it belongs to the member," says Mr Monyoncho.

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