The law on Matrimonial property has been a grey area in our legal system. The law that applies to the division of matrimonial property in Kenya, is section 17 of the Married Woman Property Act of 1882 of the United Kingdom, a statute of general application in Kenya, pursuant to section 3(1) (c) of the judicature act. The English have since repealed the law and enacted the Matrimonial Property and Proceedings act of 1970, while we in Kenya are still using the act that was enacted in the ancient 1800’s.
Under the current regime, if a party wants to have matrimonial property divided, he/she makes an application vide section 17 of the Married Woman Property Act of 1882. Section 17 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. Together with this provision, another source of law for the distribution of matrimonial property are the cases that the court has determined. The current legal regime poses a serious challenge to the administration of justice in this area of the law. The circumstances of life have changed greatly since 1882 and there is need for a law that suits the current socio-economic society as it is composed.
The Matrimonial Property Bill 2012 introduces the necessary provisions that will provide solutions to the issues in matrimonial property. It is exhaustive. It retains the purpose that necessitated the enactment of the Married Women Property Act 1882, which was to enable married women own property. Section 4 of the bill provides that, despite any other written law, a married woman has the same rights as a married man, to own property and to enter into contracts. The bill also defines what Matrimonial property is, in section section 6. Matrimonial property is defined to include the matrimonial home, house holds and effects in the matrimonial home, movable and immovable 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. Property that is acquired before the parties enter into a marriage is not matrimonial property. The bill also provides that all matrimonial property shall vest in the spouses in equal shares, irrespective of the contribution made by either of the parties towards the acquisition of the property.
The bill also recognises the existence of polygamous marriages and provides how, in case of dissolution of the marriage, property is to be divided. Section 8 provides that where the property was acquired by the man and the first wife, then it shall be retained by the man and the first wife if it was acquired before the man married another wife. 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.
The bill also provides for circumstance under which a spouse can acquire interest in property, where the property is not matrimonial property. Interest can be acquired if the claiming spouse made contributions towards the improvement of the property. The beneficial interest will be equal to the contribution made.
The principles applying to incurring of interest in property are the same ones that will apply towards acquiring liability as well. Section 10 of the bill provides that liability incurred by a spouse before the marriage relating to the property, shall after the marriage remain the liability of the spouse who incurred it. If a liability is incurred on matrimonial property during the subsistence of a marriage, then all the spouses will be liable equally.
The Bill also recognises the application of customary laws in the division of matrimonial property. The bill provides that the customs can be applied as long as they do not violate the principles enshrined in the constitution. The customary laws that will apply for the division of the property, are the laws used for marriage.
The new bill also provides for agreements by the spouses as regards their property, what is commonly known as prenuptial agreements. Section 13 of the Bill provides that any agreement between spouses before the marriage, does not affect the ownership of property other than matrimonial property to which either spouse maybe entitled, or affecting the right of either spouse to acquire, hold or dispose of any such property. This basically means that parties may enter into an agreement before conducting their marriage to determine their property rights. This applies to their liabilities as well.
The bill also makes special provisions to safeguard the spouses rights in the matrimonial property. They include:
· No property shall be alienated from either spouse during the subsistence of the marriage, either through sale, gift,mortgage, charge or otherwise, without consent of the other spouse.
· A spouse, either in a monogamous marriage or polygamous marriage, the spouse has an interest in matrimonial property capable of protection by caveat, caution or otherwise under any law in force.
· A spouse shall not during the subsistence of the marriage be evicted from the matrimonial home by any other spouse except by the order of a court.
The provisions in the new bill will definitely bring the division of matrimonial property in tandem with the existing socio economic factors in our society.