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Spousal consent a must in family property dealings

Wednesday, February 13, 2013 - 00:00 -- BY JOHN CHIGITI

The new land laws enacted last year came as a relief to many families, especially for women and their children. This is so especially with family property, more so, the matrimonial home. Husbands were the sole custodians and owners of the matrimonial homes and would therefore dispose them and charge them at will, without considering the effect of rendering the family homeless. The sanctity of the title document had the effect that if the husband was the only registered owner, then the wife had no rights over the property.

The new land laws introduced a new aspect in land transactions that involve matrimonial property. Firstly, spousal rights have been recognised as overriding interests in land. Section 28 of the Land Registration Act provides that unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests:

(a) spousal rights over matrimonial property;

Section 93 (1) of the Land Registration Act provides that subject to the law on matrimonial property, if a spouse obtains land for the co-ownership and use of both spouses or, all the spouses—

(a) there shall be a presumption that the spouses shall hold the land as joint tenants unless—

(i) a provision in the certificate of ownership or the certificate of customary ownership clearly states that one spouse is taking the land in, his or her own name only or that the spouses are taking the land as joint tenants; or

(ii) the presumption is rebutted in the manner stated in this subsection;

This provision allows for the recognition of spouses as co-owners of matrimonial property, even though the property maybe registered in one of the spouses names. The law further provides that if land is held in the name of one spouse only but the other spouse or spouses contribute by their labour or other means to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed by virtue of that labour to have acquired an interest in that land in the nature of an ownership in common of that land with the spouse in whose name the certificate of ownership or customary certificate of ownership has been registered. This provision is aimed at helping spouses who contribute indirectly in the acquisition of property but whose names are not included in the title documents of the property.

The law also requires that the spouse must give consent to any transaction involving matrimonial property for that transaction to be valid. Section 93 (3) provides that where a spouse who holds land or a dwelling house in his or her name individually undertakes a disposition of that land or dwelling house—

(a) the lender shall, if that disposition is a charge, be under a duty to inquire of the borrower on whether the spouse has or spouses have, as the case may be, have consented to that charge; or

(b) the assignee or transferee shall, if that disposition is an assignment or a transfer of land, be under a duty to inquire of the assignor or transferor on whether the spouse or spouses have consented to that assignment. This provision is meant to protect the spouse and ensure that no land transactions are carried out without their knowledge and consent. The law further provides in subsection 4 that If the spouse undertaking the disposition deliberately misleads the lender or, the assignee or transferee by the answers to the inquiries made in accordance with subsection (3)(a) or (3)(b), the disposition shall be void at the option of the spouse or spouses who have not consented to the disposition. A spouse, whose consent is not sought, can therefore seek to invalidate the transaction on those grounds. Spousal consent is therefore not an option, but mandatory in all transactions involving matrimonial property.