NAIROBI | MOMBASA | KAMPALA | DAR ES SALAAM | KIGALI | LAGOS

I&M Bank House, 7th Floor, 2nd Ngong Avenue

+254 716 209 673

law@cmadvocates.com

 

Contribution Aspect in Matrimonial Property Disputes

CM Advocates > Dispute Resolution  > Contribution Aspect in Matrimonial Property Disputes

Contribution Aspect in Matrimonial Property Disputes

Preamble

The marriage covenant is intended to be an everlasting covenant, as a result, most parties do not enter the marital relationship with thoughts that the same may be dissolved a few years down the line.

Parties invest in various forms of material wealth when in the marital relationship, some through direct money injection and others through creating an environment that allows their spouse to have career success which translates to a benefit for the family.

The traditional gender roles of men and women play a large part in marriage and family dynamics. Traditionally, the wife worked a part or full-time job until they bear children. At that point, they would leave their jobs or career behind to stay at home, raise the children and run the day-to-day activities of the home. The men’s traditional role was to provide for the family and earn money by working a full-time job.

We have come a long way from couples bearing the above-stated traditional roles. Some couple dynamics are that both are in the workforce while for some, their dynamic works with one of them remaining in the home and the other working outside the work to fend for the family.

When the marital relationship sours, it is inevitable for parties to divide/share between themselves any material wealth that has been acquired in the course of the marriage. The contribution aspect is one which parties rack their brains over, whether they are embracing alternative dispute resolution mechanisms or litigating the matter.

In this article, we look at some ways the courts have considered the aspect of contribution in matrimonial property;

What is Matrimonial Property?

  • The matrimonial home(s) household goods and effects in the matrimonial home or homes or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
  • It is important to note that trust property, including property held in trust under customary law does not form part of matrimonial property.
  • Where property was acquired before the marriage but the spouse contributed to its improvement in the course of the marriage, that spouse is said to have acquired an interest in the said property.

What is Contribution?

  • domestic work and management of the matrimonial home;
  • child care;
  • companionship;
  • management of family business or property; and
  • farm work

Case Law Analysis

  1. Contribution of spouses in the acquisition of matrimonial property is dealt with on a case-by-case basis.

Courts in dealing with issues of contribution in matrimonial property dispense with them according to the prevailing circumstances.

  • This was espoused by the Court of Appeal in TKM v SMW [2020] eKLRwhere it is stated as follows:

“We bear in mind the edict in Muthembwa v. Muthembwa (2002) 1 EA 186, and many other decisions reminding the courts that in assessing the contribution of spouses in acquisition of matrimonial property, each case must be dealt with on the basis of its peculiar facts and circumstances but bearing in mind the principle of fairness.”

  1. What is the value applied to the non-monetary contribution aspects in the acquisition of matrimonial property?

Parties are required to give evidence, sufficient enough to support the value to be placed on the less obvious contribution.

The courts have opined that it is unfair and unjust for one party to be busy just making their money (the seen income) while the other is doing two or three other jobs in the family whose income is unseen and then claim this other one did nothing.

  • In Matrimonial Cause No 20 of 2016; MW vs AN (2021) Eklr; the Honourable Judge Mumbua Matheka interrogated the issue of contribution. The court reasoned as follows;

“…the other part of contribution which is mothering, housekeeping and taking care of the family is more often than not given any value when it comes to sharing matrimonial property. It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and family.

That other spouse will be heard saying that the other one was not employed so they contributed nothing. The court opined that argument can no longer be tenable as it is a fact that stay at home parents and in particular women because of our cultural connotations do much more work (house wives) due to the nature of the job…”

The court reasoned that non-monetary contribution should count especially where the husband has not supported the raising of the children and has not borne his share of parental responsibility.

The decision emphasized that in matrimonial proceedings, monetary value will be put on the property and each party will be showing how much they put in.

  1. Do the courts give effect to both monetary and non-monetary contribution?

The courts have indicated an awareness that parties contribute in other ways outside of finances to the marriage, specifically to the acquisition of marital assets.

  • In the case of NWM v KNM (2014) eKLR the court stated as follows;

“…the court must give effect to both monetary and non-monetary contributions that both the applicant and the Respondent made during the currency of the marriage to acquire the matrimonial property…”

  • In the persuasive decision in White Vs White (200) UKHL 54the House of Lords alluded to the greater awareness of the value of non-financial contributions to the welfare of the family.
  1. Can non-monetary contribution be quantified?

Questions arise on whether the courts can place a specific quantitative value on non-monetary contribution in determining a parties share or rights in a matrimonial property suit.

  • In Matrimonial Property Cause No 49 of 2019; AWM v JGK [2021] eKLR; the court’s considered view was that the non-monetary contribution often-times cannot be quantified. The court posited;

“…If that contribution were to be reduced to monetary terms I am sure that a woman’s non-monetary contribution in the home would amount to a higher amount compared to that of the man…”

In this case, the court found that the non-monetary contribution was higher than the monetary contribution.

  1. Aren’t my spouse/former spouse and I entitled to an equal share of our matrimonial property?

In interrogating the aspect of contribution, it is important to take into account the provisions of the Constitution of Kenya vis-a vis the circumstances of each case.

Article 45 (3) of the Constitution provides that, “Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage.” This article of the Constitution of Kenya guides the courts in determining the rights of parties to a marriage in respect to subdivision of matrimonial property.

It is important to note however that this does not mean that a party to a marriage is entitled to equal share of the property acquired during marriage unless his or her contribution is ascertained to have been equal to that of the other spouse.

  • The Court of Appeal (Kiage, JA) in PNN v ZWN [2017] eKLR has stated as follows;

 “Thus it is that the Constitution, thankfully, does not say equal rights ‘including half of the property.’ And it is no accident that when Parliament enacted the Matrimonial Property Act, 2013, it knew better than to simply declare that property shall be shared on a 50-50 basis. Rather it set out in elaborate manner the principle that division of matrimonial property between spouses shall be based on their respective contribution to acquisition.”

How can we assist you?

Where you and your loved ones have encountered what seems to be an electronic will, the Wealth & Private Clients Team at CM Advocates LLP has the ability to assist you to navigate the probate process of such a will and other forms of wills.

The Wealth and Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills and experience on matters estate planning spanning, trust management and trust administration spanning across the East African Region. It offers an edge to its clients based on its legacy of having structured, re-structured, amended, incorporated several forms of trusts and therefore well capable of guiding you through the process of creating a valid blind trust.

Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us on law@cmadvocates.com or dgichuru@cmadvocates.com

Contributors

Dianah M. Gichuru –Partner & Head of Unit 

Nelima Walubengo- Senior Associate

Brian O. Okwalo- Associate

Disclaimer

This alert is for informational purposes only and should not be construed as legal advice.

Related Articles

× How can I help you?