The Court of Appeal has ruled that divorcing couples in Kenya will not automatically share matrimonial property equally, reaffirming that division must be based on each partner’s proven contribution to its acquisition.
In its landmark judgment, the appellate court upheld an earlier decision of the High Court, dismissing a petition filed by the Federation of Women Lawyers (FIDA-Kenya). The organization had sought to have Section 7 of the Matrimonial Property Act declared unconstitutional, arguing that it unfairly disadvantages women and contradicts the constitutional principle of equality in marriage under Article 45(3).
FIDA had urged the court to establish that matrimonial assets should be divided equally on a 50:50 basis once a marriage ends, regardless of who contributed what. The group argued that women often make substantial but intangible contributions, such as raising children, managing households, and offering emotional support, which are difficult to quantify in monetary terms yet vital to family stability.
“The current legal framework,” FIDA stated in its filings, “fails to adequately recognize non-financial input like domestic work and care, perpetuating economic inequality and discrimination against women after divorce.”
However, the appellate judges found no constitutional breach in Section 7 of the law, maintaining that equality in marriage does not necessarily translate to equal property ownership upon dissolution. Instead, the court emphasized that each spouse must demonstrate their level of contribution financial or otherwise for fair distribution to occur.
The ruling has reignited debate on how Kenya’s legal system values unpaid domestic labor and whether reforms are needed to better protect spouses, especially women, after divorce.
