The Supreme Court of Kenya ruled that spouses aren't eligible for half a share of marital property in a divorce. The declaration got many people guessing what lies in store, and unsure of subsequent consequences. While typical divorce issues touch on concerned individuals, children, and families, the financial implications can also be huge.
According to the 2013 Matrimonial Property Act, proof of contribution is crucial when settling finances. But then that's only part of it. Each spouse's income determines the court's orders regarding maintenance.
Before the ruling, each spouse is supposed to declare their total income and expenses. The divorce court assesses all liabilities/debts to issue a command on spousal and child support. This article will expound on various financial aspects of divorce.
There are several fundamental financial aspects of a divorce you need to know about. For example:
Divorce causes numerous stresses, including financial ones. It's not surprising that divorce lawyers get a lot of money. However, as you prepare to settle into single life, possibly with children, you will require as much money as possible.
Settling out of court is one of the various options to work out spousal maintenance, child support, and child custody. An out-of-court settlement enables you to save on those massive court visitation costs. To hack this process:
According to the landmark ruling, the 50/50 rule will no longer apply. The law now considers a spouse's contribution during marriage when deciding who takes what.
If there isn't an equal contribution towards the marital property, it would be unfair for the other party to reap where they didn't show.
The exception is for spouses who might not have given a direct monetary contribution but played supportive roles such as household chores. In this case, the spouse can claim a share of the wealth, though not on a 50/50 basis.
How does the law determine spousal contributions? The court will take into account:
Marital property might entail houses, land, and other assets you acquire in your marriage.
These take center stage in any divorce court. Your lawyer will need to help document every purchase within your marriage.
The law indicates that all property acquired during your union is vested in both spouses according to their contribution. The court divides these assets between the spouses upon marriage dissolution.
With the recent changes in the constitution, the court recognizes unpaid care roles at home during marital property division.
But experts say spouses shouldn't work on assumptions. Instead, it would help if you documented each crucial contribution during the marriage. Documentation of receipts, vouchers, and signatures can help prove your contribution to acquiring marital property.
In a sale agreement, your appended signature is evidence of the division of assets.
What if you contributed several iron sheets, cement, or labor to construct your house? The receipts you submit in court vouch for you.
The two most crucial financial aspects of divorce are spousal and child maintenance. Spousal support caters to a financially incapable partner, while child support is for kids below 18 years.
How does the court calculate spousal maintenance? Various statutory provisions, plus the ruling judge's discretion, will guide the amount of money allocated to a spouse. The court will also consider the child's welfare in determining this aspect of financial support. Some of the factors include:
A point to note: A divorce court may also order urgent spousal support if a spouse who has been financially supporting you cuts you off abruptly.
Both prenup and postnup agreements can have substantial financial implications during a divorce.
A prenup, also known as a premarital agreement, is a private couple agreement before they marry. The signed agreement shields your assets and finances during a divorce, since they are off-limits, and your spouse can’t claim a share.
If you have substantial assets before marriage you should never throw caution to the wind. Instead, use your lawyers to agree on a prenup. Some of the essentials include:
Suppose there isn't any provision in the agreement touching on alimony. The court can then order spousal maintenance for a partner.
Postnup agreements are almost similar to a prenup. The only difference is that they take place after a legally binding marriage. These contracts are still new in the Kenyan legal context, and there aren't statutory provisions that support them. However, the court can assess the agreement as it would any lawful contract and order its implementation.
The courts consider a postnup as a binding document that springs from the willingness of a consenting married couple. It can only stop its enforcement if the agreement is out of coercion or fraud.
A postnup agreement becomes advantageous if:
As a prenup;
What happens once the court dissolves a marriage? If the recent court ruling is anything to go by, then individual contributions in a marriage determine how much you gain financially after divorce. The equal share rule applies only if you show proof of your contributions. It's another story regarding spousal and child maintenance as the court evaluates each partner's current income to issue the ruling.