Sharing matrimonial property on divorce

Every weekend (even as we get through this pandemic) hundreds, even thousands of couples choose to make a public statement of their companionship by entering a marriage, with some celebrating the beginning of that union in a wedding ceremony. The vows made at this ceremony point to death being the only thing that should separate the couple.

Unfortunately, that is not always the case, and when divorce precedes death, along comes the inconvenience of separating what initially was held under the general principle of “what is mine is yours”.

In Kenya, this inconvenient part is guided by the Matrimonial Property Act of 2013.

To understand what this law says, it is important that we first understand some key terms. The first is the ‘matrimonial home’.

Matrimonial home refers to the family home, where both spouses and the children live. The second is ‘matrimonial property’, which is the crux of the matter at hand. Matrimonial property refers to the matrimonial home, household goods and effects in that home, and any other movable or immovable property jointly owned and acquired during marriage. The third definition is ‘contributions’.

Contribution in this Act is not restricted to money and also includes child care, domestic work, companionship, farm work, and management of a family business. Contributions are important here because property that was owned by one spouse can become matrimonial property based on contribution to its improvement by the other spouse.

It is worth mentioning that Muslims may apply Islamic Law on matters relating to matrimonial property.

So how is ownership of matrimonial property shared? And how is this property to be divided in the event of divorce?

The Act states that matrimonial property is owned according to the contribution made in acquiring (or improving) the property. In the event of divorce, matrimonial property is to be split between the partners as per their contribution to acquiring the property. In 2018, the High Court dismissed a petition filed by Fida Kenya challenging this provision and proposing a 50/50 split of matrimonial property upon divorce. In its decision, the High Court stated that sharing matrimonial property equally between spouses would “open the door for a party to get into marriage and walk out of it in the event of divorce with more than they deserve”.

The law also has a provision for spouses to enter a prenuptial agreement before marriage to determine their property rights. However, a court can set aside such an agreement if it was influenced by fraud or coercion or if the terms are deemed unjust.

For real estate, the Act provides a safeguard by requiring spousal consent before selling, gifting, leasing out or mortgaging matrimonial property. Case in point, in November 2018 a High Court judge ruled that the sale of a piece of land in Murang’a County was illegal, null and void because the individual who sold the land did not seek written consent from his wife before selling.

A disclaimer in all this: cohabiting partners have no right to lay claim to property. This Act applies to marriages that have been registered. So if you are in it for the long haul, consider formalising the union.

For the case of gifts from one spouse to the other, the gift belongs to the recipient alone.

Additionally, liabilities incurred before or during the marriage remain responsibility of the spouse who incurred them. Your university or Fuliza loan is not a shared burden with your partner. At least not in the eyes of the law.

A final parting shot, parents are not required to get consent from their children prior to selling property. This was evident in a ruling made by the High Court in April this year in a case where two sons were suing their father for selling his inherited and ancestral land without consulting them or their mother. Their argument was that since the property was to eventually pass on to them, their father should have consulted them.