Bill provides for equal sharing of marital property
The Marriage Property Bill 2012 requires mutual consent before a matrimonial property is sold or transferred. It will repeal the Married Woman Property Act. FILE
Parties to a marriage will have equal share to matrimonial property regardless of the contribution towards its acquisition if a law approved by the Cabinet last month is enacted.
The Matrimonial Property Bill 2012, published by Attorney-General Githu Muigai defines matrimonial property as the family home, household goods and other effects and immovable property owned by either spouse. These assets will be divided equally between the spouses if they divorce or if the marriage is dissolved. However, property held in trust under customary law does not form part of the matrimonial property. A party to a marriage is allowed by the Bill to enter into an agreement before their marriage to determine their property rights.
However, one may apply to the court to set aside the agreement on the grounds that it was influenced by fraud, coercion or is unjust.
But the new law, which will be introduced to Parliament Tuesday afternoon, provides for separate property during the marriage.
The Bill requires that there be consent before any matrimonial property is disposed off and that no spouse will be evicted from the matrimonial home without a court order.
It sets out equal legal status for the man and woman in a marriage and that each spouse can acquire separate property during the marriage. Muslims will be governed by the Islamic Law in regards to matrimonial property.
Where property is acquired in the name of one spouse, the court shall assume that the property belongs to that spouse alone.
“A person may apply to a court for a declaration of rights to any property that is contested between spouses or former spouses,” states the Bill. The law stipulates that of matrimonial property will be owned in equal shares irrespective of one’s contributions to its acquisition.
It will be divided equally between the spouses if they divorce or dissolve the marriage.
It also makes provisions for property rights within a polygamous marriage or divorce.
“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,” states clause 8(1).
Matrimonial property acquired after the marriage of another wife shall be regarded as owned by the man and the other wives taking into account the contribution of each of the wives.
“Where it is clear by agreement of the parties that any wife has her separate matrimonial property with the husband, then such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives,” says clause 8(2) of the Bill.
The law will place any liability incurred by a spouse before the marriage or after marriage to the spouse who incurred it.
The proposed law requires the consideration of customary law principals during the division of matrimonial property, subject to the values and principles of the Constitution.
The Bill, according to Prof Muigai will cater for matrimonial property disputes in Kenya and will repeal the Married Woman Property Act.
