Whenever couples get married, they are normally bound in joy. They usually acquire wealth and property during the subsistence of the marriage. The battle for the distribution of matrimonial property usually begins upon the dissolution of marriage. None of the parties will take the other’s offer.
In Kenya today, there is no legislated law that deals with the division of matrimonial property once parties to a marriage have dissolved their marriage. The nature of our families is such that the husband is the head of the family and therefore property is normally registered in their name.
It is only in rare occasions that the matrimonial property is registered in the name of the wife, or in the joint names of the spouses. One of the gaps in law is that no mandatory is called for during the registration of the property, in so far as the contributions, whether direct or indirect, that a spouse makes to the acquisition of matrimonial property.
The law in Kenya as regards a spouse who wants a share of the matrimonial property is governed by the Married Women Property Act of 1882, a statute of general application in Kenya. Section 17 of the act provides that “in any question between husband and wife as to the title or possession of property, either of them may apply to the High Court or a county court and the judge may make such order with respect to property in dispute …. As he thinks fit”.
An applicant will therefore move the court through this section. It should however be noted that, in England, where this law is borrowed from, proper laws as regards dealing with matrimonial property have long been enacted while we are still stuck to this old law. Given that there is no legislated law on this subject, the issue of matrimonial property has been left to the discretion of the courts to decide how matrimonial property is to be divided.
The courts have from time to time in determining issues of this nature urged the legislature to enact a law to govern this critical subject. This has been the case in the Kivuitu vs Kivuitu and The Echaria cases. I believe late Wambui Otieno's matrimonial property case is an interesting one to watch.
In determining how matrimonial property is to be divided, the courts have always considered the contributions made by the claiming spouse and fairness. These contributions can either be direct or indirect. Direct contributions are actual monetary contributions towards the acquisition of these family assets.
Indirect contributions range from one being a good spouse to taking care of household expenses as the other spouse accumulates or saves money to buy the family assets. Going per the Echaria case, one has to prove contribution in order to get a share of the matrimonial property.
This will enable the court to determine the level of contribution of the alleging party, so as to be able to divide the property equitably. It is very difficult for one to prove indirect contribution, and the extent to which one contributed to the acquisition and the improvement or development of matrimonial property.
If the property in dispute is registered in the joint names of the spouses, the court will take a different approach in dividing the property. The court will presume that, by the registration of the properties in the joint names, the property was agreed to be jointly owned by the parties, with each having an equal share of the property.
It is therefore advisable for family property to be jointly registered as opposed to the property being registered in one spouse’s name, because then it would mean that the property belongs to the registered owner and the other party will need to prove contribution. We can however seek solace in the fact that the Constitution provides that all parties to a marriage are equal.