Nairobi businessman Andrew Munene Gachengo was last Friday allowed to keep a house he bought in Langata Estate without financial contribution from his wife, Mary Goretti Nyambura. PHOTO | FILE
What you need to know:
Intellectual property may not require help of spouse and can fall outside matrimonial property.
Matrimonial property has been one of the main contentions for separating couples, second to child custody. Issues to do with matrimonial property have taken the centre stage in high profile divorce cases.
But now, unlike before the Matrimonial Property Act was passed, it is possible for couples to employ certain strategies to ensure that in the event of a separation, property issues do not become complicated.
Matrimonial property includes homes, household goods and any acquisitions during the marriage, says the Act. This definition is very wide and in my view includes all property that is acquired by the couple when they are married.
There are certain exceptions to the definition, including property held in trust for others. However, looking at the definition, then intangible property like shares and even intellectual property would fall here.
There is, therefore, a great need to plan for your matrimonial property to ensure it does not form a contentious issue as the couple goes into marriage.
Take the example where one spouse invents something during their marriage and is awarded a patent which when commercialised is worth billions of shillings.
During divorce or separation proceedings would the other spouse be entitled to a share of this?
In most parts of the US, intellectual property has been considered to form part of matrimonial property so that a singer’s royalties can be shared.
The definition is important because in the event of a divorce, this property will be subject to division/splitting as the court decides.
Before the enactment of the Matrimonial Property Act in 2013, prenuptial agreements (prenups) were not common in Kenya. Even after, prenups are rare.
Most people do not know that the law recognises prenups. Section 6 of the Act allows couples to enter into written arrangements concerning matrimonial property before they enter marriage.
The prenup will take precedence over other principles of settling matrimonial property, in the event of a divorce or separation.
Prenups are advantageous for several reasons. One is that they provide a mechanism for couples to protect their separate property.
Some property is acquired without any assistance of the other spouse; for example; intellectual property and, therefore, one party may desire for it to fall outside the definition of matrimonial property and not be subject to divorce proceedings.
Prenups protect third parties who have an interest in the matrimonial property from the drastic effects of divorce. For example, a company’s management would be badly affected in the event that its shares fell subject to a matrimonial property dispute. This happened in a leading divorce case in Kenya where the company’s shares became part of divorce proceedings.
Prenups can hedge this risk. Prenups preserve the value of property and also forms a hedge against property devaluation in the event of divorce proceedings.
They ensure the divorce proceedings are faster and neater. There is opportunity for less conflict as there is little likelihood for any of the spouses to use matrimonial property as a revenge weapon against the other.
Prenups are advisable before entering into marriage if there is a sense of risk or where there is a need to protect important assets in the event of a divorce.
However, prenups have also been known to bring about a lot of tension in a marriage and they seem to imply that the couple has trust issues with each other.
