Matrimonial Property Law in Kenya
As a consequence of separation, annulment of marriage, or divorce, one of the glaring issues is the division of any property that the parties obtained during the subsistence of the marriage. Generally, women find it difficult to benefit from the properties acquired while in marriage. The patriarchal society, cultural, religious, and previous legal provisions seem to favour men as the owner of the property obtained during the marriage. Many women end up walking out of marriages in which they have invested hugely with empty hands.
Fortunately, the 2010 Kenyan constitution brought a departure by underpinning the equal rights of the parties to the marriage at the start of the marriage, during the subsistence, and after the dissolution of the marriage[1]. Further, the right to own property either as an individual or with others is constitutionally protected[2]. This implies that a marriage does not limit a party to a marriage’s rights to acquire, hold and dispose of any such property other than matrimonial property.
Matrimonial Property Act, 2013
Matrimonial property is any property the parties have acquired to marriage during the subsistence of the marriage. It includes the matrimonial property, household goods and effects in a matrimonial home and movable or immovable goods that have been jointly acquired during the subsistence of the marriage[3].
However, the matrimonial property does not include any property held in trust under customary law by any marriage spouse. An example of a customary trust is where an individual holds family land in trust of their siblings. Additionally, the matrimonial property does not include any property that is excluded as a specific spouse’s property rights due to their prenuptial agreement entered before the marriage. It is critical to note that matrimonial property vests in the spouses according to their contribution towards its acquisition and shall be divided by the spouses following divorce or dissolution of their marriage[4]. Before the enactment of the Matrimonial Act, one of the critical considerations in determining what and how much a spouse could get in cases of matrimonial properties was the financial contribution.
Only the party that had contributed financially to getting the property was regarded to have property rights. This mode of determination was flawed as it did not consider the non-monetary contribution of spouses, such as companionship, domestic work, and management of the matrimonial home, raising of children, farm work, and management of the family business or property by either of the spouse and particularly women who take care of their homes and children while their husbands go for jobs or their business.
Assumptions Regarding Matrimonial Property
Where a property has been obtained during the subsistence of the marriage, and it is registered in the name of one of the spouses, there is a rebuttable presumption that the registered spouse holds the property in the trust of the other spouse. However, where both spouses are registered as the property owners, there is a rebuttable presumption that both spouses have equal and joint beneficial interests in the property. In cases where a spouse gifts their spouse a property during the subsistence of the marriage, it is presumed that that property absolutely belongs to the gifted and registered spouse.
Matrimonial Property Under Polygamous Marriages
As discussed in the preceding chapter about marriages, a polygamous marriage is where a man can have more than one wife. Under a polygamous marriage, if the matrimonial property is obtained before the husband marries a second wife, the property belongs to the husband and the first wife[5]. In cases where the property has been obtained after the husband marries another/other wives, the property is deemed to belong to the husband and the wives according to their contributions towards its acquisition.
However, a husband and any wife can agree to the individual and separate property ownership away from the other wives. One of the vital aspects of matrimonial property is a matrimonial home, any property owned or leased by one or both spouses, occupied or utilized by the spouses as their family home, and includes any other attached property.
A matrimonial home is critical as it is the roof for the couple or the family and would remain so for either one of the spouses or the family. It is usually the most valuable capital asset for the couple. So, upon separation or divorce of the spouses, the issue of the matrimonial home should be addressed urgently with the view of establishing ownership. It is important to note that matrimonial protection rights apply to owned and rented homes. For matrimonial homes, they may be categorized in different forms, such as;
- Jointly owned matrimonial homes: – this is where both spouses are joint tenants and their beneficial interests are equal.
- Matrimonial home is in the sole name of one spouse: In this aspect, there is a presumption that the spouse who is registered as the owner of the matrimonial home holds it in the other spouse’s trust.
Regardless of the nature of ownership of the matrimonial home, a matrimonial property cannot be property cannot be conveyed, transferred, mortgaged, or charged as security for a loan without the other spouse’s consent which is evidenced by their voluntary signature without duress or undue influence[6].
Additionally, every spouse has a protectable right on the matrimonial property through caveat, caution, or even a court order. Most importantly, a spouse during the subsistence of the marriage cannot be evicted from the matrimonial home without a court order. A court order can be issued in the circumstances such as; where an interest or estate of matrimonial property is sold in execution of a decree, by a trustee in bankruptcy, or by a compulsory sale by the charge or mortgagee.
Considerations for the Matrimonial Home
Where there is a dispute of ownership of the matrimonial home, the court needs to give consideration to various factors such as: –
- Where the children and the spouse with the care of the children will live?
- Where the other spouse is going to live?
- What is to be done with the matrimonial home?
Accordingly, the court has the following possible solutions in such case: –
- Immediate sale and division of the proceeds;
- Outright transfer to one party; and,
- A trust for the sale.
Acquisition of an Interest in a Matrimonial Property
Where a spouse got property before the marriage, that property is not part of the matrimonial property between the spouses. However, a spouse can obtain a beneficial interest on the property for their contribution towards its improvement in equal measure of their contribution. A good example would be where a spouse had bought land before the marriage, but the other contributed towards erecting a house or agricultural activities after the marriage.
Claims Regarding Matrimonial Property
Any person including the following can file a suit either in High Court or a Magistrate Court with the pecuniary jurisdiction to enforce a claim relating to the matrimonial property; –
- A spouse or a former spouse;
- Any person claiming an interest against a spouse or a former spouse;
- A trustee in bankruptcy;
- An executor /personal representative/ administrator under a will or grant relating to the estate of a spouse or a former spouse.
