Distribution of Property At Divorce

Summary of legal issue:

The case seeks to challenge the basis on which matrimonial property is divided at the time of dissolution of marriage in Kenya. The case challenges section 7 of the Matrimonial Property Act as being in conflict with Article 45(3) and other constitutional rights. Section 7 provides that property must be divided based on the parties proved contribution towards the acquisition of the matrimonial assets, whereas Article 45 (3) provides that parties are to have equal rights at the time of dissolution of marriage.

Theory of change:

This case aims to change the basis on which matrimonial property is divided between parties at the time of dissolution of marriage. The legislation currently provides that the test for distribution is that of proved contribution towards the acquisition of the property. This strategic litigation tries to assist the court in moving the jurisprudence towards a test that provides for equal distribution of property, an interpretation based on Article 45(3) of the Constitution. ISLA’s intervention as amicus seeks to assist the court by providing legal argument that addresses regional and international treaty obligations and comparative case law that highlights the inequity that flows from the application of a proved contribution test.

Documents:

High Court judgment

Note:

The Federation of Women Lawyers in Kenya has lodged an appeal against the High Court judgment. The appeal is to serve before the Court of Appeal in Kenya. ISLA has lodged an amicus curiae application before the Court of Appeal and awaits directions from the Court.