Childbirth strengthens a mother’s claim in divorce property disputes -court
By Shadrack Nyakoe
Supreme Court Judge Njoki Ndung’u has affirmed that childbirth is recognized as a valid contribution when dividing matrimonial property during a divorce.
Speaking at Jomo Kenyatta University of Agriculture and Technology (JKUAT) School of Law, she explained that courts assess both financial and non-monetary contributions when determining how assets are shared after a marriage dissolves.
Justice Ndung’u noted that while some argue for an automatic 50-50 property split upon divorce, the law requires courts to evaluate individual contributions before making a ruling.
She emphasized that a spouse’s role in raising children, managing the home, and supporting the family, even without direct financial input, is taken into account.
“For instance, if a husband takes out a mortgage for a house while the wife stays home raising six children, the court will recognize her efforts in running the household, ensuring the children are cared for, and supporting the family,” she explained.
She added that childbirth itself is a factor courts consider when determining the division of assets. “It can be assessed as a contribution alongside financial input, such as paying for a mortgage,” she stated.
Justice Ndung’u referenced a 2020 Supreme Court case where a couple married under customary law contested the division of their property. A lower court had initially granted the wife 30% of their matrimonial home and 20% of rental properties.
Dissatisfied, she appealed, leading the appellate court to rule for a 50-50 split. The husband then challenged this at the Supreme Court, arguing that equality in marriage does not mean an equal division of property upon divorce.
The Supreme Court upheld the 50-50 ruling but clarified that Article 45(3) of the Constitution, which guarantees equality in marriage, does not automatically translate to equal asset division. Instead, matrimonial property is shared based on proven contributions, assessed on a case-by-case basis.
Justice Ndung’u highlighted that indirect contributions, such as childcare and homemaking, are now firmly established in Kenyan legal jurisprudence as factors in property division.
