The Supreme Court has declared that in order for a court to establish the portion of the marital estate that belongs to them in the event of a divorce, a party must demonstrate contribution to the marriage.
The court further stated that a case-by-case analysis is used to establish the level of contribution.
According to the judges of the top court, even though Article 45(3) of the Constitution addresses the equality of spouses’ fundamental rights during a divorce, this equality does not entail a redistribution of property rights or a presumption that spouses are automatically entitled to a 50/50 share by virtue of being married.
In the conflict, a man by the name of JOO was battling his ex-wife MBO over the division of property.
Even though it had been determined that she had not contributed to the acquisition and development of the property, the High Court issued a ruling in February 2017 awarding the lady (MBO) a share of 30% of the matrimonial home in Tassia Estate and a 20% portion of the rental units.
In response to the man’s appeal in February 2018, the Court of Appeal reversed the High Court’s ruling and ordered that the couple’s marital home and rental properties be divided equally.
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses in the event of a divorce or other dissolution of the marriage,” reads section 7 of the matrimonial property act.
In 2018, FIDA filed a lawsuit against the aforementioned section, claiming that the constitution guarantees equal rights to both participants in a marriage.
The High Court, however, rejected the petition, arguing that granting the request would open a “loophole for fortune hunters” to gain from their spouse’s success in the event of a divorce.
In a different instance, the Court of Appeal decided in February 2018 that assets accumulated during the marriage should be split 50/50.
The man, who had been wronged, went to the Supreme Court and persuaded the justices to resolve the issue.
“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses in the event of a divorce or other dissolution of the marriage,” reads section 7 of the matrimonial property act.
The criteria to assess the level of contribution is one that is determined on a case-by-case basis, the judges stated. “That a party must prove contribution to enable a court to decide the percentage available to it at the division of matrimonial property.”
The judges stated that each case should be evaluated on its own merits in order to determine what constitutes a fair and equitable legal formula for the reallocation of matrimonial property rights at the dissolution of a marriage and whether the same can be accomplished by a fixed method of apportionment at a 50:50 ratio.
