Mativo Mercilessly Crushes FIDA Lunacy

[vooke]

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The High Court has declared that couples whose marriages end in divorce are entitled to what they each contributed during the union.

Justice John Mativo, in a landmark ruling on Monday, rejected a bid for couples to share their acquisitions 50-50.

Fida had wanted section 45 (3 of the Marriage Act, that states couples should get what they contribute, declared unconstitutional.

But the judge said: "A person cannot walk into a marriage and then walk out with more than what they deserve."

He said the provision was meant to curb situations where parties to a marriage would be left to settle debts incurred during the subsistence of the marriage.

The Federation of Women Lawyers had challenged the constitutionality of Section 7 of the Matrimonial Properties Act.

The organisation had alleged the section offends Article 45 (3) of the Constitution which provides that parties to a marriage are entitled to equal rights at the start, during and at the dissolution of marriage.

Fida had also argued that the law creates unfair discrimination against women, arguing that the gender suffers most after dissolution of marriage.

The contention  was that the law was passed by Parliament despite objections.

[/i]


https://www.the-star.co.ke/news/2018/05/14/fida-loses-battle-for-divorced-couples-to-share-wealth-50-50_c1758151

Next up for challenge is maintenance.

Maintenance will be thrown out

[Kichwa]

All I can say is WOW!!   How will the court determine, "what they contribute". 

The High Court has declared that couples whose marriages end in divorce are entitled to what they each contributed during the union.

Justice John Mativo, in a landmark ruling on Monday, rejected a bid for couples to share their acquisitions 50-50.

Fida had wanted section 45 (3 of the Marriage Act, that states couples should get what they contribute, declared unconstitutional.

But the judge said: "A person cannot walk into a marriage and then walk out with more than what they deserve."

He said the provision was meant to curb situations where parties to a marriage would be left to settle debts incurred during the subsistence of the marriage.

The Federation of Women Lawyers had challenged the constitutionality of Section 7 of the Matrimonial Properties Act.

The organisation had alleged the section offends Article 45 (3) of the Constitution which provides that parties to a marriage are entitled to equal rights at the start, during and at the dissolution of marriage.

Fida had also argued that the law creates unfair discrimination against women, arguing that the gender suffers most after dissolution of marriage.

The contention  was that the law was passed by Parliament despite objections.

[/i]


https://www.the-star.co.ke/news/2018/05/14/fida-loses-battle-for-divorced-couples-to-share-wealth-50-50_c1758151

Next up for challenge is maintenance.

Maintenance will be thrown out

[Dear Mami]

I disagree with the court. Both FiDa and the article they were fighting are wrong. You can't create such hard and fast mechanical rules around this issue like that if you wanna be fair. What I hate about these politically charged manenos is that there's never room for nuance and reasonableness.

A housewife (or househusband) who has been married to someone 28 years of their life has contributed a lot that cannot be measured in strictly tangible terms. A law that simply says mechanically "Everyone gets out what they brought in" will simply screw over people like this for no good reason. They may not be entitled to half, sure, but they are surely not entitled to zero either! How can any reasonable person be ok with such a state of affairs?

Similarly, a young pretty thing married to a tycoon for some 3 or 5 years should not be entitled to walk out with half his wealth just because they were married. No reasonable person would think that was fair.

This law saying you are entitled to zero or FIDA saying you are entitled to half no matter the circumstances are both very unreasonable IMO.

You need more nuance around these things than is being displayed by the MPs and even FIDA. I hope this is appealed to the highest levels and the law quashed and the MPs get a chance to create more reasonable rules around the division of matrimonial property but not on the terms that FIDA demand.

[Kichwa]

I think the court dropped the ball here. The legislature gave them enough to create a standard which is fair. The Key word that the legislature gave them was "contribution". They can make that a technical term and  and create a scheme to boot. For example they can say that after 2 Years of marriage, the aggrieved spouse will be entitled to a certain percentage per year of the increase in wealth but after 30 years of marriage, the aggrieved spouse should be entitled to half. IMO the Kenyan courts need to be more creative and activist in pursuit of justice instead of our "hands are tied" conservative approach to justice.

I disagree with the court. Both FiDa and the article they were fighting are wrong. You can't create such hard and fast mechanical rules around this issue like that if you wanna be fair. What I hate about these politically charged manenos is that there's never room for nuance and reasonableness.

A housewife (or househusband) who has been married to someone 28 years of their life has contributed a lot that cannot be measured in strictly tangible terms. A law that simply says mechanically "Everyone gets out what they brought in" will simply screw over people like this for no good reason. They may not be entitled to half, sure, but they are surely not entitled to zero either! How can any reasonable person be ok with such a state of affairs?

Similarly, a young pretty thing married to a tycoon for some 3 or 5 years should not be entitled to walk out with half his wealth just because they were married. No reasonable person would think that was fair.

This law saying you are entitled to zero or FIDA saying you are entitled to half no matter the circumstances are both very unreasonable IMO.

You need more nuance around these things than is being displayed by the MPs and even FIDA. I hope this is appealed to the highest levels and the law quashed and the MPs get a chance to create more reasonable rules around the division of matrimonial property but not on the terms that FIDA demand.

[RV Pundit]

It's a good rulling. The divorce court should have the discretion to quantify contribution of each spouse and make a determination after examining all facts. Each case in a marriage is so unique I don't think it possible to come with fast rules. Vooke I think misunderstand this - there is nothing that has been thrown out here - except a default 50-50 contribution. Each party has to proof they contributed.. and such contribution could entail house keeping/making etc.

The same is true with maintenance/alimony and child custody. A competent court should listen to the facts and make a reasonable fair judgement.

[Kichwa]

The court of appeal can give guidelines on how "contribution" is to be determined to  create uniformity and predictability. They could outline or even enumerate  the factors for the courts ought to look at and even identify which factors are more important.

It's a good rulling. The divorce court should have the discretion to quantify contribution of each spouse and make a determination after examining all facts. Each case in a marriage is so unique I don't think it possible to come with fast rules. Vooke I think misunderstand this - there is nothing that has been thrown out here - except a default 50-50 contribution. Each party has to proof they contributed.. and such contribution could entail house keeping/making etc.

The same is true with maintenance/alimony and child custody. A competent court should listen to the facts and make a reasonable fair judgement.

[vooke]

It's a good rulling. The divorce court should have the discretion to quantify contribution of each spouse and make a determination after examining all facts. Each case in a marriage is so unique I don't think it possible to come with fast rules. Vooke I think misunderstand this - there is nothing that has been thrown out here - except a default 50-50 contribution. Each party has to proof they contributed.. and such contribution could entail house keeping/making etc.

The same is true with maintenance/alimony and child custody. A competent court should listen to the facts and make a reasonable fair judgement.

I understand FIDA was going for a blanket 50:50 share on the basis of some katiba clause that says spouses are equal before,during and after marriage bla bla.

Mativo simply said that the equality envisaged has other things in mind but not wealth generation which solely depends on contribution by each party.