The High Court has ruled that a spouse who contributes nothing in their marriage should not benefit from a share of the wealth built by the partner upon divorce.
In rejecting the automatic 50:50 division, High Court John Mativo dismissed a case filed by the Federation of Women Lawyers (Fida) that sought for equal division of matrimonial property on the basis that marriage is made of equal partners.
Fida had wanted Section 7 of the Matrimonial Property Act declared unfair and unconstitutional to women.
The section provides that each party should get what they contributed in a marriage. The women lawyers argued that it offends Section 45(3) of the Marriage Act, which provides for equal rights at the time of the marriage and in divorce.
The judge also opened the door for men to earn a share from their wives on divorce, saying that the term spouse does not mean only women should benefit. “On the question of alleged discrimination, the impugned section talks of parties to a marriage. My understanding is that it means both men and women; it does not specifically refer to women. There will be situations where women will be earning more than men in acquiring matrimonial property,” Justice Mativo ruled.
He continued: “The provision clearly recognises non-monetary contribution by either spouse. Non-monetary contribution is not limited to women alone. It applies to both men and women.”
At the center of the dispute is how the courts can measure non-monetary contribution so that couples can get a fair share of their property.
Section 2 of the Matrimonial Act provides that courts ought to weigh spouse’s contribution in terms of domestic work and management of their matrimonial home, child care, companionship, management of family business or properties, and farm work.
Fida had argued that the law allowed men to walk away with the lion’s share of what was gathered in the marriage because no one could say how well or badly a woman fed the man and his family or ironed their clothes.
“The greatest injustice, which in my view forms the basis of the petitioner’s fear as I understand, has been failure to reward and recognise a spouse whose contribution to the family has been a home maker – performing household chores, and bearing and raising children,” the judge said.
In his decision, the judge relied on two verdicts – one by Court of Appeal Judge Patrick Kiage and another by High Court Judge Francis Tuiyott – to find that marriage is not a business venture for those who want quick and easy riches.
Last year, Justice Kiage, in a seven-page ruling, said it was bizarre to think a married woman’s or man’s legal rights equated to 50 per cent of the wealth without considering individual contributions
He said the thinking behind equal share in marriage was woven to convert honest people into gold diggers, pleasure lovers and marriage-hopping brides and grooms.
“The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50-50 mantra.
“It is not a matter of mathematics merely, as in the splitting of an orange in two for, as Biblical Solomon found, justice does not get to be served by simply cutting up a contested object of love, ambition or desire into two equal parts. I do not think that getting married gives a spouse a free-to-cash cheque bearing the words ‘50 per cent’," ruled Justice Kiage.
Justice Tuiyott had also said it would be oppressive for a spouse who gives more in a marriage to give half of what they acquired. “I take the view that at the dissolution of the marriage, each partner should walk away with what he/she deserves. What one deserves must be arrived at by considering his/her respective contribution – whether it be monetary or non-monetary.
“The bigger the contribution, the bigger the entitlement. But to hold that Article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property,” the judge ruled.