Wealth Not Shared 50:50 But Earned Through Contribution, Court Rules on Divorce

When JOO and his estranged wife, MBO, walked out of their marriage in 2008 after nearly two decades together, they left behind more than broken vows. They ignited a legal battle that would eventually reach the highest court in the land and reshape how Kenyan couples think about matrimonial property.

The question before the courts was deceptively simple yet profoundly complex: Does saying “I do” automatically entitle a spouse to half of everything accumulated during marriage?

The answer, delivered first by the Court of Appeal and later affirmed by the Supreme Court, was an unequivocal no. Marriage alone, the judges ruled, does not confer ownership rights. Property must be earned through contribution, whether financial or non-financial, and that contribution must be proven.

The ruling has sent ripples through Kenya’s legal landscape, forcing couples to confront uncomfortable truths about love, labour and the law. It has vindicated some and disappointed others. But most importantly, it has brought clarity to a debate that has raged in courtrooms for years: fairness, the courts say, does not always mean splitting everything down the middle.

The Foundation: Echaria Sets the Stage

Before JOO and MBO became a landmark case, Kenyan courts looked to another matrimonial dispute for guidance. In 2007, a five-judge bench of the Court of Appeal delivered a decision in the case of Peter Mburu Echaria, a former diplomat, and his estranged wife, Priscilla Mburu Echaria that would set the tone for years to come.

The Echarias’ divorce had been acrimonious. When it was finalized in 1993, the High Court awarded Ms Echaria, who died in January 2019 aged 83, an equal share of their 118-acre Tigoni Farm. The decision relied on Section 17 of the Married Women’s Property Act of 1882, which presumed that property bought during marriage was co-owned and should be sold and divided equally in case of divorce.

Mr Mburu appealed, and in February 2007, appellate court judges Philip Tunoi, Emmanuel O’Kubasu, Erastus Githinji, Philip Waki and William Deverell rewrote the rules. They found that for a wife to claim a share of property registered in her husband’s name, she had to prove her contribution toward its acquisition. Distribution, the judges said, should be based on what each party brought to the table.

The Echaria ruling became the guiding principle in matrimonial disputes. It introduced a shift from automatic entitlement to evidence-based distribution. Marriage, the court declared, was not a free pass to someone else’s assets.

When Contribution Becomes Contested

JOO and MBO married under Abagusii customary law in 1990. Over the years, they built a life together, acquiring land and developing rental units in Nairobi. But when the marriage collapsed in 2008, the question of who owned what became bitterly contested.

The High Court initially awarded MBO a 30 percent share of the land and 20 percent of the rental units. Dissatisfied, she appealed, and the Court of Appeal ruled in her favour, granting her a larger share. But JOO was not done fighting. He took the matter to the Supreme Court, arguing that his estranged wife had not proven her contribution to the property.

In January 2023, a four-judge bench led by Deputy Chief Justice Philomena Mwilu delivered a judgment that would become one of the most significant rulings on matrimonial property in Kenya’s legal history. The apex court emphasized that Article 45(3) of the Constitution, which guarantees equality between spouses, was never intended to mandate automatic 50-50 division of property.

Instead, the judges said, equality means fairness. Each spouse is entitled to their fair share based on what they contributed, and no more. The ruling underscored that contribution could be direct or indirect, financial or non-financial, but it had to be demonstrated, not assumed.

What Counts as Contribution?

The courts have been careful to define contribution broadly. It is not just about who wrote the cheque to buy the land or who paid the contractor to build the house. A spouse who stayed home to raise children, who managed the household, who provided emotional support, or who sacrificed career opportunities to enable the other spouse to thrive has also contributed. These non-monetary inputs, the judges have said, are just as valuable as financial investments.

But here is the catch: they must still be proven. A homemaker cannot simply claim entitlement based on the fact of marriage. They must show that their actions, their sacrifices, their labour created an environment that enabled the acquisition of property.

Justice Patrick Kiage, in a 2017 concurring decision, captured the complexity of this task. “The reality remains that when the ship of marriage hits the rocks, flounders and sinks, the sad, awful business of division and distribution of matrimonial property must be proceeded with on the basis of fairness and conscience, not a romantic clutching on to the 50:50 mantra,” he wrote.

He added that dividing property is not a matter of simple mathematics, like splitting an orange in two. Justice, he said, does not come from cutting a contested object into equal parts. It comes from understanding what each party deserves based on what they have given.

The Law and Its Intentions

Section 7 of the Matrimonial Property Act is clear. Ownership of matrimonial property vests in spouses according to their contribution, and it shall be divided between them if they divorce or their marriage is dissolved.

In 2018, the Federation of Women Lawyers in Kenya (FIDA) challenged this provision, arguing that parties to a marriage are entitled to equal rights under the Constitution. But the High Court dismissed the petition, warning that allowing automatic 50-50 division would create a loophole for fortune seekers to benefit from their spouse’s success without making any effort.

The Supreme Court echoed this concern in the JOO v MBO case. If Article 45(3) were interpreted to mean automatic equal division, the judges said, it would encourage some people to enter marriages, make no contribution, and then wait for divorce to claim half of everything.

“Noting the changing times and the norms in our society now, such a finding would encourage some parties to only enter into marriages, comfortably subsist in the marriage without making any monetary or non-monetary contribution, proceed to have the marriage dissolved then wait to be automatically given 50 percent of the marital property. That could not have been the intention of our law on the subject,” the judges ruled.

Equity, Not Equality

The concept of equity lies at the heart of the court’s reasoning. Equity, the judges explained, recognizes that a spouse who did not contribute more resources to acquiring property may have nonetheless, through their actions or deeds, provided an environment that enabled the other party to accumulate wealth.

This is what amounts to indirect contribution. Equity ensures that a party who lacks the means to prove direct financial contribution is not barred from getting a share of matrimonial property. But it also ensures that someone who invested money, acquired land, or developed assets is not stripped of half simply because they got married.

The Supreme Court stressed that to hold otherwise would bring huge difficulties within marriages. It would undermine the institution, turning it into a transactional relationship where one party could exploit the other’s hard work.

A Balancing Act

The ruling is a balancing act. On one hand, it protects those who have worked hard to build wealth from being unfairly disadvantaged in divorce. On the other, it recognizes that homemakers, caregivers, and those who contribute in less visible ways deserve recognition and compensation for their sacrifices.

But it places the burden of proof squarely on the shoulders of the party claiming a share of property not registered in their name. This can be a daunting task, especially for spouses who may not have kept records of their contributions or who may not have the resources to hire lawyers to argue their case.

Critics of the ruling argue that it disadvantages women, who are more likely to take on unpaid domestic work and childcare responsibilities. They say that requiring proof of contribution ignores the structural inequalities that exist within many marriages and places an unfair burden on those who have already sacrificed so much.

But supporters of the ruling say it is a necessary safeguard against exploitation. It ensures that marriage is not used as a tool to gain access to someone else’s wealth without effort. It promotes fairness, they argue, even if that fairness is sometimes difficult to achieve.

The Road Ahead

The JOO v MBO ruling is now the law of the land. It has been cited in numerous subsequent cases and has become the benchmark for how courts approach the division of matrimonial property. But it is not the end of the conversation. Couples continue to litigate over what counts as contribution, how to prove it, and what constitutes a fair share.

The ruling has also sparked broader discussions about the nature of marriage itself. Is it a partnership of equals, or is it a contract where each party must account for what they bring to the table? Can love and law coexist, or does the cold logic of contribution undermine the very foundation of what marriage is supposed to be?

These are questions without easy answers. But for now, the law is clear. Marriage is not a 50-50 affair. It is a union where what you get depends on what you give. And when love ends, the burden of proof begins.