Quick answer NO! Marriage does not guarantee a 50 – 50 share of assets in case of a divorce.
This surely sounds like bad news to all those hoping to get into marriage unions for the sake of walking away with what they never labored for. The so-called gold diggers.
Correct me if am wrong, Marriages are no longer what they used to be – A sweet union of a one man and one woman joined until death. Today, in Kenya in particular and the rest of the world in general, the numbers of divorce cases are on the roof.
For the sake of putting this into context, Jeff Bezos the world riches man just announced that he and his wife Mackenzie Bezos are separating. So yes, the numbers are high.
What then is the legal provision for the separation of assets in an event that the marriage ship hits the rocks and sinks?
Well, that is exactly what this article seeks to answer.
Division of property in case of a divorce
If you were marrying for the assets, too bad for you.
Divorce is nasty and in most cases an unwanted tug of war. A common question that often arises is how to deal with matrimonial property. The property owned or purchased by either party before and during the union. It can include but not limited to matrimonial home, household goods, movable and immovable assets jointly owned. All this is provided for in the Matrimonial Property Act (2013) Article 260.
So, what does each party go with in case of a divorce?
The Kenyan Constitution 2010 recognized that each party to a marriage has equal worth and equal importance in the union, this does not, however, guarantee an equal share of assets to those that think marriages are a short cut to success.
In a ruling, Justice John Mativo held that parties to marriage could only walk away with what they contributed. In his judgment, he noted that the beneficial share of each spouse depended on the proven respective share of his or her financial contribution, which could be either direct or indirect.
In a different divorce case, Lady Justice Mary Gitumbi had to invoke the maxim of equality and directed that matrimonial home be equally shared between the husband (Plaintiff) and the wife (Defendant). In her ruling, she cited that the legal landscape had changed and what each party contributed to the purchase of the property was no longer the only thing that mattered.
The two case outcome clearly shows that there is no fixed formula in law that governs the division of matrimonial property after separation. Three Court of Appeal judges held that each divorce case should be determined based on what each spouse contributed and a suitable portion of the property shared out.
What follows then is the question of how each party can protect themselves in such an eventuality.
How do you protect your assets in cases of divorce?
The law provides that each spouse have equal right to acquire, control, use, hold, or dispose of property. It also allows each party to enter into a contract, sue, or be sued in their name.
I would like to believe that most marriages are built on happiness and support from both the husband and the wife, this is however not being naïve to the fact that others are often traps crafted to swindle the other party.
Therefore, to protect your asset, you can do any of the following things:
1. Sign a Prenuptial Agreement
This is a contract between you and your spouse before entering into a marriage that outlines how to divide and distribute matrimonial property. The agreement may only be voided by the court in cases of fraud, manifested injustice, or coercion.
2. Use a company
Law regards a company as a separate legal entity. What this therefore means is that the jurisdiction of the family court – which will often hear and determine divorce cases – does not apply to such properties.
However, in cases of a dispute-filled in the high court under Section 211 or 222 of the Companies Act, the share of each party will then depend on their proven respective proportions of financial contribution whether directly or indirectly towards the property acquisition.
Disclaimer: The information provided does not constitute legal advice. If in need of such advice, we recommend that you seek the help of a qualified legal professional (lawyer).