Nairobi — Couples seeking a share of matrimonial property after dissolution of marriages will now have to prove their contribution, the Supreme Court has ruled.

The judgement delivered on Friday overruled the splitting of matrimonial property on a 50/50 basis.

In its decision on a dispute between Joseph Ombogi and Martha Bosibori, the apex court said "the test to determine the extent of contribution is one of a case to case basis."

The court noted equality of spouses under Article 45(3) of the Constitution does not imply spouses are automatically entitled to half of the matrimonial property.

The court held that sharing of matrimonial property without considering each party's contribution would amount to flawed re-distribution of property rights.

"While Article 45(3) of the Constitution deals with equality of the fundamental rights of spouses during dissolution of a marriage, such equality does not mean the re-distribution of proprietary rights or an assumption that spouses are automatically entitled to a 50pc share by fact of being married," the court ruled.

"Nowhere in the Constitution do we find any suggestion that a marriage between parties automatically results in common ownership or co-ownership of property," the court outlined.

The court said couples must prove contribution based on which a court would determine a percentage to be assigned to either party.

The court noted that a judgement in Echaria v Echaria [2017] eKLR, where the High Court split a parcel in proportion of three quarters (¾) and one quarter (¼), provides sufficient guidance on the matter.