The Apex court on Friday ruled that after divorce the husband and wife will leave the marriage only with a percentage of what they contributed when they were married.
However, if you can prove with evidence that you contributed 50 percent then the court will share it among the two parties.
In the case a couple who have been in court over distribution of their matrimonial property was given 50:50 after the court said it was convinced with the ex-wife's evidence that she took out loans and contributed to the purchase of the matrimonial property and rental units
The court quashed the automatic 50:50 rule that has been the norm in most courts when sharing matrimonial property to divorced couples.
The court ruled that allowing the 50:50 rule with the current changing times would encourage some parties to enter marriage with nothing then not contribute anything but wait to automatically be given 50% of the marital property.
“It is our finding that the stated equality under Article 45(3) means that the courts are to ensure that at the dissolution of a marriage, each party to a marriage gets a fair share of the matrimonial property based on their contribution,” the court ruled.
The judges said the best way to do this is by considering the respective contribution of each party to ensure no party is unfairly denied what they deserve as well as ensuring that no party is unfairly given more than what he or she contributed.
It was also their view that in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family in one way or another, to whichever extent, however big or small.
They said that both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit adding that it may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family.
“Therefore, in the event that a marriage breaks down, the function of any court is to make a fair and equitable division of the acquired matrimonial property guided by the provisions of Article 45(3) of the Constitution,” the court ruled.
The court further held that to hold that Article 45(3) has the meaning of declaring that property should be automatically shared at the ratio of 50:50 would bring huge difficulties within marriages.
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