The High Court, Lady Justice Mary Gitumbi in CMN v. AWM [2013] eKLR in recognizing the principle of equality under Article 45(3) of the Constitution said: .......................The legal landscape has since changed so that it is no longer a question of how much each spouse contributed towards the purchase of the property which matters …the legal provision in force now requires this court to apply the principle of equality instead. This court is duty bound to share the Suit Property [matrimonial house] equally between the Plaintiff [husband] and the Defendant [wife]. Justice Francis Tuiyot in another case.....alluded that by recognizing non-monetary contribution, the Act was in sync with Article 45(3) of the Constitution and that each party should walk away with what he or she deserves. A lazy spouse gets nothing. Here is what the good judge said: ..............Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then, the Courts should give it effect. But to hold that Article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property. That surely is oppressive to the spouse who makes the bigger contribution. That cannot be the sense of equality contemplated by Article 45(3).
Posted on: Mon, 17 Mar 2014 12:26:29 +0000
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