Marriages go hand in hand with property. Couples normally acquire assets during marriage. However when the marriage is not working out, parties always want to part ways. The question is always who will take what. It is normally a hard decision to make.
The High court has been given the powers to help parties to a marriage when it comes to distribution of Matrimonial property through the Married Women Property Act of 1882.
Yes 1882.We have continued using the statute irrespective of the fact that it has been amended in its country of origin, to suit the present needs of matrimonial property. Well Kenya has come of age on the issue. Matrimonial Property Bill has brought some changes in this area.
The bill defines, matrimonial property under section 6(1) as
(a) the matrimonial home or homes;
(b) household goods and effects in the matrimonial home or homes;
(c) any other immovable and moveable property owned by both or either spouse and acquired during the subsistence of the marriage; or
(d) Any other property acquired during the subsistence of the marriage.
When the court is determining what amount of the matrimonial property a spouse is to get, in case of a divorce, it looks at various factors. For a spouse to get a share of the matrimonial property, they must show their contribution. Contribution has been defined to mean monetary and non-monetary contribution and includes—
(a) domestic work and management of the matrimonial home;
(b) child care;
(d) management of family business or property; and
(e) farm work;
This definition protects non employed spouses who take care of the family as the other spouse provides for the matrimonial needs of the family. This is in harmony with Article 45(3) of the constitution which provides that parties to a marriage are entitled to equal rights during the marriage and at the dissolution of the marriage.
The Matrimonial Property Bill allows the parties, before celebrating their marriage, to enter into prenuptial agreements relating to financial matters and the division of their matrimonial property in the event of a divorce, commonly referred to as a prenuptial agreement.
Section 6 (3) of the bill provides that Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.
The Bill further provides that if consent in the prenuptial agreement was obtained by fraud, coercion or duress or it is unjust, the affected party can apply to the court to set the agreement aside.
The matrimonial home has been defined to mean any property that is owned or leased by one or both spouses and occupied or utilised by the spouses as their family home and includes any other attached property.
Section 7 of the bill sets out the principle of the division of matrimonial home, it provides that subject to section 6(3), ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce or their marriage is otherwise dissolved.
This means that the principles of equality in Article 45 of the constitution shall be the guiding principle in the division of the matrimonial home. This provision does not however stop a party to the marriage to apply to the court for the determination of the matrimonial property of the other spouse.
The provisions regarding the subdivision of matrimonial property in polygamous unions are in section 8 of the bill. The bill seeks to protect the rights of the first wife, and also sets out the principles of division of the property with other wives.
Subsection (1) provides that If parties to a polygamous marriage divorce,
(a) matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife.
(b) matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the other wives taking into account any contributions made by the man and each of the wives.
Further, subsection(2) provides that despite subsection (1) (b), where it is clear by agreement of the parties that any wife has her separate matrimonial property with the husband, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.
A party to a marriage can acquire interest in a property which is not matrimonial property, which was acquired before the celebration of the marriage by making contributions towards it.
Section 9 of the Bill provides that where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.
The bill has provided for the application of customary law in the division of matrimonial property among spouses subject to the values and principles of the Constitution.
This protects the principle of protection of rights of future generations to community and ancestral land as provided for under Article 63 of the Constitution; and the principles utilisation of ancestral home by a wife or wives.
The Bill also seeks to protect the rights of spouses in matrimonial property against the interest of the other spouse to alienate the property. Section 12.
(1) provides that An estate or interest in matrimonial property shall not, during subsistence of a monogamous marriage and without the consent of both spouses be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.
(2) A spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any of the man's wives, have an interest in matrimonial property capable of protection by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.
This is in tandem with the Land Registration Act which provides in Section 93 (3) 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.
A spouse, whose consent is not sought, can therefore seek to invalidate the transaction on those grounds. The land Act in section 79 (3) provides that a charge of a matrimonial home, shall be valid only if any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons.
The Bill also provides that no spouse shall be evicted during the subsistence of a marriage from the matrimonial home without a court order. If the Bill is enacted, the Married Women Property Act of 1882, which is the statute applicable in matrimonial property issues, will be repealed.