Divorce is a challenging process, more so where the parties have an acrimonious divorce, unlike where parties have mutually decided that their marriage is not working for them and thus need separation/annulment. One of the most contentious issues is the division of property. In Kenya, the legal framework governing the division of matrimonial property is well-defined, ensuring fairness and equity for both parties involved. This article comprehensively analyzes the legal framework governing property division after divorce in Kenya, citing relevant laws and key case law precedents.
The Constitution of Kenya, 2010
The Constitution of Kenya, 2010 also plays a crucial role in dividing matrimonial property. Article 40(1) guarantees the right to property for every person. Article 45(3) states that parties in a marriage have equal rights during the marriage and at its dissolution. However, the Supreme Court in Petition No.11 of 2020 Joseph Ombogi Ogentoto vs Martha Bosibori Ogentoto has clarified that this equality does not automatically mean that once a party is in a marriage, they are entitled to get a half share from what the other spouse has independently acquired though the other spouse has not contributed anything towards its acquisition. Doing so would mean denying a party’s independence and inherent right to acquire property before and during marriage. The apex court observed that nowhere in the constitution does marriage between parties automatically result in common ownership or co-ownership of property. Accordingly, each spouse should leave the marriage with the wealth they individually acquired, and any division should be based on a party’s proven contributions towards the acquisition of the property in question.
The Matrimonial Property Act, 2013
The Matrimonial Property Act of 2013, CAP 152, is the primary legislation governing property division after divorce in Kenya. The Act defines matrimonial property as either the matrimonial home, household goods and items in the matrimonial home, or any movable or immovable property jointly owned and acquired during the marriage. It excludes property held in trust or subject to pre-nuptial agreements. The key provisions of the Act include:
- Section 2: Defines contributions as monetary and non-monetary contributions and includes domestic work, management of the matrimonial home, childcare, companionship, management of the family business or property, and farm work.
- Section 6: Defines matrimonial property as property acquired during the subsistence of the marriage, including the matrimonial home, household goods, and property jointly owned and acquired for the benefit of both spouses.
- Section 7: States that ownership of matrimonial property vests in the spouses according to the contribution of each spouse, either monetary or non-monetary.
- Section 9: Recognizes indirect and direct contributions, including domestic work, childcare, farm work, companionship, and property improvement.
- Section 14: Addresses matrimonial property registered in one spouse’s name. There is a rebuttable presumption that the property is held in the other spouse’s trust. For jointly registered property, there is a presumption of equal ownership unless proven otherwise.
- Section 17: Allows a spouse to apply to the court for a declaration of their rights to property acquired during the marriage that is contested between that person and a spouse or a former spouse of the person.
Judicial Precedents on Property Division in Kenya
Kenyan courts have interpreted the statutory provisions to clarify property division in divorce cases. Key decisions include:
Joseph Ombogi Ogentoto v. Martha Bosibori (2023): The Supreme Court of Kenya ruled that an equal division of matrimonial property is not automatic upon divorce. The court emphasized that Article 45(3) of the Constitution, which guarantees equal rights to both spouses during and at the dissolution of marriage, does not automatically entitle a former spouse to a 50% share of assets. Such equality can only mean that each party is entitled to their fair share of matrimonial property and no more. Further, the division of property must be based on the proven contributions of each spouse towards the acquisition or development of the property. Each spouse should leave the marriage with the wealth they individually acquired. Article 45(3) and other constitutional provisions do not suggest that there is an automatic common ownership or co-ownership of property after marriage between parties.
Peter Mburu Echaria V Priscilla Njeri Echaria [2007] KECA 504 (KLR), commonly cited as Echaria Vs. Echaria case is undoubtedly the most cited and the landmark authority in matters division of the matrimonial property for any matrimonial property disputes pre the Matrimonial Property Act. Priscilla Njeri Echaria filed a petition in 1987 for the division of property acquired during her marriage to Peter Mburu Echaria. The High Court ruled in her favour, following the earlier precedent case of Kivuitu v. Kivuitu, which is argued to have promulgated the equal sharing of matrimonial property by spouses jointly registered, granting her an equal share of the property, which included a Twiga Hill Farm in Tigoni comprising 118 Acres.
NB. Before that, all the cases involving disputes between husband and wife over beneficial interest in the property acquired during the marriage had gone to the Court of Appeal; the court had invariably given the wife an equal share.
Peter Echaria appealed the decision, and in 2007, the Court of Appeal departed from its earlier determination in the Kivuitu case and reduced Priscilla’s share to a quarter (25%) of the assets. The Court of Appeal held that where the property in dispute is registered in the name of one spouse, the beneficial interest of each spouse would depend on the financial contribution of each spouse, either directly or indirectly. The Court of Appeal went ahead to find that for a wife to be entitled to a share of the property that is registered in the husband’s name, she had to prove a contribution towards the acquisition of that property. Accordingly, the Echaria case provided that a spouse does not acquire any beneficial interest in matrimonial property by the fact of being married only and that a specific contribution has to be ascertained to entitle such a spouse to a specific share of the property. The court further noted that for one to be entitled to a share of the property, the court should consider the circumstances of each arising case independently in assessing contribution further noting that what amounts to contribution may either be direct and monetary and indirect and nonmonetary.
Conclusively, under the Echaria case and other case laws emanating from our superior courts, the status of the marriage does not solely entitle a spouse to a beneficial interest in the property registered in the other’s name, nor performs domestic duties. Even the fact that the wife was economical in spending on housekeeping will not do.
Factors Considered by Courts in Property Division
When adjudicating property division disputes, Kenyan courts consider several factors, including:
- Direct and Indirect Contributions: Courts assess financial input (e.g., purchasing property) and non-monetary input (e.g., domestic work, raising children, and emotional support).
- Length of Marriage: Longer marriages typically lead to a more equitable division of property considering both spouses’ shared life and contributions.
- Needs of the Children: The welfare of children, if any, is factored in to ensure their best interests are safeguarded.
- Any Agreements Between the Spouses: Pre-nuptial and post-nuptial agreements made by the parties are considered, provided they are legally binding and fair.
- Registration of Property: Property that is jointly registered is presumed to be owned equally unless evidence proves otherwise.
- The Conduct of the Parties: The conduct of each spouse during the marriage, particularly any actions that may have negatively impacted the marriage or the property, can be taken into account.
Challenges in the Matrimonial Property Division
- Proving Non-Monetary Contribution: Many spouses struggle to demonstrate their indirect contributions to property acquisition.
- Hidden Assets: Some spouses attempt to conceal property to avoid sharing it during divorce proceedings.
- Cultural and Gender Biases: Despite legal provisions, gender biases sometimes affect judicial determination.
- Lengthy Litigation Process: Property division cases can take years to resolve due to appeals and legal complexities.
Conclusion
The division of matrimonial property after divorce in Kenya is governed by constitutional principles, statutory provisions, and judicial precedents emphasizing fairness and equity. While each case is determined based on individual circumstances, the courts strive to balance financial and non-financial contributions when allocating property between spouses.
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