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High Court rejects equal sharing of matrimonial property

Justice John Mativo. file photo | nmg
Justice John Mativo. file photo | nmg 

Marriage gold diggers have suffered a major setback after the High Court ruled that a provision in the Matrimonial Property Act that requires family property to be shared according to each spouse’s contribution is constitutional.

Justice John Mativo made the decision in a petition that women lawyers had filed seeking to declare the provision a nullity and the establishment of the principle of equal sharing of matrimonial property upon dissolution of a marriage regardless of what an individual contributed.

Justice Mativo found that the Federation of Women Lawyers-Kenya’s (Fida) position would amount to opening the gates for fraudulent marriages where individuals enter matrimony with the intention of triggering divorce a few months down the line and walking away with half of their spouse’s wealth.

“The interpretation preferred by the petitioner in my view is an open invitation to this court to open the door for a party to get into a marriage and walk out of it in the event of divorce with more than they deserve,” he said.

Fida had named the Attorney-General as the respondent in its petition. The judge in his ruling observed that both the Court of Appeal and High Court had in the past pronounced themselves on the provision while hearing divorce cases and had upheld the principle of sharing based on a spouse’s contribution.

The judge ruled that there was no basis to claim that the section discriminates against women since either gender in the marriage can be the bigger contributor to matrimonial wealth.

He further refuted Fida’s suggestion that women, some of whose contribution are non-monetary, would be disadvantaged.

The judge said the law has taken care of women by offering them a chance to prove their contribution to the family as homemakers, performing household chores, bearing children versus a spouse who uses his or her resources for daily subsistence of the family.

Justice Mativo found that ‘all a party in a marriage dispute is required to do is to provide evidence of her non-monetary contribution and leave it to the court hearing the dispute to make the decision’.

The court further noted that there was no discrimination in the demand that property be shared according to each party’s contribution.

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