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September 20, 2018

New law guides distribution of matrimonial property

We have all reasons to celebrate the birth of a new legal regime that will regulate and provide for the rights and responsibilities of spouses in relation to matrimonial property.

The Matrimonial Property Act 2013 – Kenya Gazette Supplement No.183 (Acts No.49) - which commenced on January 16, 2014 is the name of this tiny but powerful piece of legislation. This new law has liberated us from the outdated colonial Married Women Property Act of 1882.

The 1882 statute will no longer feature as one of the laws governing matrimonial property. Article 45 provides for equality in marriages at the time of the marriage, during the marriage and at the time of dissolution.

Parliament had five years to enact a law under Schedule 5 to the constitution under this provision of the Bill of Rights. It has done part of its work. The new statute has a host of interesting aspects and concepts that borrow heavily from the letter and spirit of the constitution. 

Under Section 7 of the Act, the ownership of matrimonial property vests in the spouses 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. 

Under Section 2 of the Act, "matrimonial property” means matrimonial home or homes; household goods and effects in the matrimonial home or homes; any other immovable and moveable property owned by both or either spouse and acquired during the subsistence of the marriage; or any other property acquired during the subsistence of the marriage. 

Section 6 (1) of the Act defines "contribution" as monetary and non-monetary contribution and includes— domestic work and management of the matrimonial home; child care; companionship; management of family business or property and farm work; the courts will have the duty to determine what amounts to contribution and the entitlement.

The statute has embraced indirect contribution to the acquisition of the matrimonial property. This is how the court determined in the case of Kivuitu vs Kivuitu-www.kenyalaw.org. However a party who is claiming entitlement to a share in the matrimonial property has to prove that they put in some form of direct, indirect, material or emotional contribution. Section 6 (1) embraces the grey space and concept of prenuptials. It gives room to persons who intend to marry and to own property in specific pre-determined shares the room to agree and define that. 

Unlike in the Married Women Property Act of 1882, one can now file a suit for the determination of their share in the matrimonial property without having to file a divorce petition. 

The Act has a safety valve in Section 12 which protects both spouses from the mischief that is too common in Kenya where one spouse sells the matrimonial property without the knowledge of their spouse. This has now come to an end.

The section provides that “an estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses be alienated in any form either by way of sale, gift, lease, mortgage or otherwise.” This provision simply means that a sale agreement of matrimonial property by one spouse unilaterally is a voidable sale.

If you are purchasing matrimonial property you have to be extra careful now. You will be asked for the consent of your spouse before completing such sale transactions.

This provision mirrors what the committee of experts had envisioned when they brought about Article 27 of the Constitution in so far as equality and equal protection before the law is concerned.

The banks have to pay attention to the rights of the spouse of the borrower. They have an indirect obligation and or duty to ensure that they protect the spousal rights.

This resonates with Article 20 of the constitution. The days when the stronger spouse evicted and or threw their spouse from the matrimonial home has come to a statutory end. Any such mischief has been made illegal by Section 12(3).

This provision reverberates Article 45 of the constitution which protects spouses equally.

This protection prohibits third parties from evicting a spouse too. The only exception to the foregoing is where there is due process and the application of the rule of law. The die has been cast. 

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