Coverture has been defined as an archaic term that refers to the legal status of a married woman. In Common Law, coverture was the protection and control of a woman by her husband that gave rise to various rights and obligations. Upon marriage, a husband and wife were said to have acquired unity of person that resulted in the husband having numerous rights over the property of his wife and in the wife being deprived of her power to enter into contracts or to bring lawsuits as an independent person. These restrictions were abolished by various statutes that promoted the rights of women to own their own properties.
The law applicable in Kenya in dealing with questions of Matrimonial Property is the Married Woman Property Act of 1882, a statute of general application in Kenya, which was enacted to enable ownership of property by married women. The preamble to The Married Women Property Act only makes reference to married women. It stipulates that it is an act to consolidate and amend the acts relating to the property of married women. Section 17 thereof provides that in any question between husband and wife as to the title to or possession of property either party may apply for an order to the court and the judge may make such orders with respect to the property in dispute as he thinks fit. It is worth to note that the country that originally enacted this statute has since repealed it and enacted better laws that embrace the current state of affairs.
The Matrimonial Property Bill 2012 introduces the necessary provisions that will provide solutions to the issues in matrimonial property. - See more at: http://www.the-star.co.ke/news/article-115115/wifes-right-matrimonial-property. The Married Women Property Act of 1882 is not clear on when one can move to court for the determination of matrimonial property issues. The Matrimonial property Bill embraces a scenario where a spouse can sue their spouse during coverture or former spouse. The preamble to the Bill has embraced the term spouses unlike the Married Women Property Act which adopted the term Woman. The Bill keeps with the spirit of equality as set out under Articles 27 and 45 of The Constitution. The preamble provides that it is an act of parliament to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes.
Once The Bill becomes Law, then the Married Women Property Act shall cease to apply in Kenya. Section 17(1) provides that a person may apply a court for a declaration of rights to any property that is contested between that person and a spouse or former spouse of the person. Subsection 2 provides that such an application
Shall be made in accordance with such procedure as may be prescribed
May be made as part of a petition in a matrimonial cause
Maybe made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.
The Married Women Property Act of 1882 does not tell us whether the aggrieved spouse has to file a divorce petition before filing a suit under this Act or not. In a recent in case number 29 of 2009-O.S.-RMG VS GK and others, Hon Musyoki ordered that the law requires that a suit for the division of matrimonial property can only be filed after coverture is broken by separation or pendency of matrimonial proceedings.
The Land Registration Act and The Married Women Property bill has made it clear that a spouse can actually sue their spouse during the subsistence of a marriage for orders to declare certain transactions void. Section 93 (3) of The Land Registration Act provides that,(3) 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.
It 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.
What would happen to parties in a marriage who want to remain married when they found themselves fighting over property?Would a disadvantaged spouse have to wait and or watch their property being sold,mortgaged and or transferred against their wish?Would it be fair to say that they can only move to court to protect their right to matrimonial property only after they have filed a divorce or a separation cause?It would be unfair and a sorry state of affairs to expect parties in a marriage who are not ready to divorce.To me this would offend the provision of Article 27of The Constitution which guarantees all including parties to a marriage to equal protection before the Law.
Any spouse can move the court under the Land Registration Act and the Land Act in case there is any dispute on how any immovable property is being dealt with.The Environment and Land Court established by the Environment and Land Court Act, 2011 (No. 19 of 2011) has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.