One of the most prevalent concerns with respect to divorce and the propriety rights of each spouse is whether a divorcee has a right to a share and/or interest in the property, which is in the other spouse's name. To start off, the legal framework governing the division of matrimonial property may be discussed within the operation of the following provisions of the Constitution and statute:

Firstly, Article 40 (1) of the Constitution of Kenya, 2010 generally guarantees that every person has the right to property. In the same vein and specific to matrimonial property, Article 45(3) of the constitution is clear that; “Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage.” In effect, parties to a marriage continue to have equal rights even after their marriage has been dissolved.

Secondly, and more substantively, the Matrimonial Property Act, 2013 offers more extensive guidelines on the respective rights of spouses to matrimonial property. Section 6 (1) of the Act defines ‘matrimonial property’ as; “matrimonial home, household goods and effects in the matrimonial home, any movable or immovable property jointly owned and acquired during the subsistence of the marriage.” Of significant import and quite contrary to popular belief, it should be borne in mind that property that a spouse acquires before the marriage is contracted exclusively belongs to the spouse and does not fall within the realm of the definition of matrimonial property. It therefore goes without saying that the first and most fundamental burden of a divorcee is to prove that the property in dispute is, in the strict legal sense, matrimonial property.

Conventionally, an application for division of matrimonial property is made at the High Court of Kenya. Noteworthy, a party seeking to have the matrimonial property divided must attach 'a decree absolute', evidencing that the marriage has been dissolved. Division of matrimonial property cannot take place whilst the marriage is still subsisting.

By dint of section 6 (3) of the Act, the parties to a marriage are at liberty to enter into an agreement that explicitly determines the right of each spouse to property that will be acquired during the subsistence of the marriage. During the subsistence of the marriage or in the event of divorce, a party to marriage and can invoke section 6(4) of the Act by asserting through an application made in court that the agreement made under section 6(3) was entered by way of fraud, coercion or any manner that is manifestly unjust and unfair.

When parties to a marriage procure a divorce, each spouse’s right to property acquired during the subsistence of the marriage is determined according to the extent of contribution. Where a party to marriage claims a right to property, he or she must prove the alleged extent of contribution to the acquisition or development of the property. Section 7 of the Act states, “Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

The question that lingers in the minds of most divorced spouses is whether they are automatically entitled to half of the matrimonial property upon divorce. The response is a resounding 'NO'. It is imperative to note that, despite the fact that Article 45(3) provides that parties to the marriage have equal rights upon dissolution of the marriage, such right is not synonymous does to a '50/50' or 'half-half' share of the matrimonial property. The Court of Appeal in PNN v ZWN [2017] eKLR firmly held the view that the framers of Article 45(3) of the constitution did not contemplate that parties to a marriage will divide matrimonial property in equal measure on a 50/50 basis. Rather notably, the Court of Appeal observed that the term 'equal rights' implies that the parties' share of property is hinged on the extent of contribution by each party.

Section 2 of the Matrimonial Property Act provides that contribution includes monetary and non-monetary contributions. Non-monetary contribution includes but is not limited to: “domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work.” In AWM v JGK [2021] eKLR the High Court pronounced itself on the issue of a non-monetary contribution of a spouse. It stated that despite the fact the Respondent employed the services of house managers, the Applicant made a non-monetary contribution within the meaning of section 2 of the Act by virtue of being a mother and being part of the school and social lives of the children of the marriage. As such, she was entitled to a share of the property acquired during the subsistence of the marriage.

Per the provisions of section 9 of the Act, where a property is owned by one of the spouses and is not matrimonial property by virtue of being acquired during the subsistence of a marriage, a spouse will have a beneficial interest in the property if he or she proves that she made a contribution towards the improvement of the property. It gives added relevance to note that a beneficial interest in the property solely owned by one spouse can arise when it is proven that contribution was made towards renovating or improving the quality of the property.

The ratio and/or percentage of the contribution made by each spouse will be determined according to a preponderance of evidence tendered by each party. As a rule, the burden of proof of contribution rests on the spouse seeking a share or interest in the property.