LEAVING THE TABLE: A SUMMARY OF OGENTOTO v OGENTOTO

What one brings to the table has been a common conversation lately in the dating scene. The question that has however been litigated on over and over is on what one leaves with from that table upon the dissolution of a marriage. Some courts have ruled that all properties should be shared equally, others have opined that a spouse must show their contribution to the acquisition of the properties whether financially or otherwise.

On the 27th of January 2023, the supreme court of Kenya in Ogentoto v Ogentoto dealt with this question. The case involved a long legal battle between the parties on the ownership of rental houses. In its judgment, the Court noted that even though the Constitution guarantees equal rights during the dissolution of a marriage, this does not automatically result to the redistribution of propriety rights. It also noted that, in a marriage, it is assumed that both spouses share everything and that parties contribute towards their home or family from their earnings. At the same time, however, married persons can buy their own property with their own money.

The determination of this case, was complicated as it was filed before the 2013 Matrimonial Property Act became law. There was therefore a question of whether the Court should use the old 1882 Matrimonial Property Act, or the 2013 Act. The court held that the 1882 Act was applicable. It also decided that the Constitution was also applicable.

The Supreme Court decided that the equality spoken of under Article 45(3) does not mean that a spouse is entitled to 50% of what the other spouse owns. To give such an interpretation, would result in unprecedented outcomes. The institution of marriage would be watered down into an business, where parties only get married, make no financial contribution, file for divorce, and wait to receive 50% of the other spouses’ property. People would be reaping where they did not sow. Moreover, it would automatically presume co- ownership of property between a married persons. The court held that this could not have been the intention of the drafters of our constitution.

The Court supported this point by stating that the equality provision under Article 45(3) does not entitle a court to interfere with the property of a spouse that the other has not contributed towards. The equality envisioned, is that each spouse is entitled to a fair share of the matrimonial property and nothing more.

In the event of a divorce therefore, Courts take into account the extent of contribution. This should be assessed on a case-by-case basis considering financial and non-monetary contribution. Non-monetary contributions would include things such as child care and domestic work. Each spouse will leave the marriage with property equal to their individual contribution to the union. Contribution being both monetary and non-monetary.

BYRON MATI
Legal Aid Volunteer