The sharing of matrimonial property is one of the most difficult tasks for judges because there are no precedents and each case must be decided by weighing the peculiar circumstances.
It is even difficult if part of the property contested is claimed by one spouse as a gift.
Judy Thongori, an advocate who runs a family law practice in Nairobi, says the Matrimonial Property Act presumes that “there shall be a rebuttable presumption that the property thereafter belongs absolute to the recipient.”
When a marriage ends, what happens to the gifts? Can a spouse take back the house or car gifted to his or her partner?
The sharing of matrimonial property is one of the most difficult tasks for judges because there are no precedents and each case must be decided by weighing the peculiar circumstances.
It is even difficult if part of the property contested is claimed by one spouse as a gift. So what happens if one of the spouse gifted the other but later denies the same or where the property has been registered in one of the spouse’s names?
Judy Thongori, an advocate who runs a family law practice in Nairobi, says the Matrimonial Property Act presumes that “there shall be a rebuttable presumption that the property thereafter belongs absolute to the recipient.”
Rebuttable, she explains, means that the gift can be challenged. The same applies to a property registered in the name of one of the spouse.
“The Act says there shall be a rebuttable presumption that the property is held in trust for the other spouse,” she says, adding that “in cases where the property is jointly registered in names of the spouse, there shall be rebuttable presumption that their beneficial interest in the matrimonial property are equal.”
But in most cases, she says, the spouse who was gifted should be allowed to retain the gift, especially if the gift is in the same condition or has not acquired or increased value.
Unpaid spousal work
In a decision delivered in 2016, Justice Said Chitembwe noted that the task of distributing matrimonial property is based on judicial discretion and what the trial court would consider to be just in each particular case.
“Unlike disputes involving award of damages where there are precedents to guide the court, disputes relating to distribution of matrimonial properties are unique in the sense that at times it is difficult to determine the level of contribution of each party. Spouses would usually not keep records of individual contribution wherever acquiring properties during their happy lives,” the Judge said.
When it comes to sharing of property acquired in a marriage, Ms Thongori says the court considers several factors.
In some cases, distribution is based on contribution made by each party. If a man bought land for construction and paid for all the building materials, can his wife claim the house? How can she prove to the courts that she contributed by paying the worker's bills or supervised construction?
Section 7 of the Matrimonial Property Act states that; “Subject to section 6(3), ownership of matrimonial property vests in the spouses according to contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
In a ruling delivered in 2017, Court of Appeal Judge Patrick Kiage said, “Does this marital equality recognised in the Constitution mean that matrimonial property should be divided equally? I do not think so. I take this view while beginning from the premise that all things being equal, and both parties having made equal effort towards the acquisition, preservation or improvement of family property, the process of determining entitlement may lead to a distribution of 50:50 or thereabouts. That is not to say, however, that as a matter of doctrine or principle, equality of parties translates to equal proprietary entitlement.”
Danstan Omari, a lawyer, says unpaid care work is a win for women. The lawyer, however, says that women should document, where possible, their contribution in acquisition and development of matrimonial property because, one must prove the part they contributed.
The contribution must not necessarily be monetary but also non-monetary forms, which includes, domestic work and management of the matrimonial home, child care, companionship, management and family business or property, and farm work.
Women, especially in rural areas are the sole caretakers of their children while their husbands are away providing for the family.
“Where there is direct contribution in terms of monetary, keep the receipts because they will come in handy. If there is a sale agreement and it shows that the property is registered in your name or you purchased several bags of cement, please keep them,” he says.
But Mr Omari said there is non-monetary contribution such as being the house manager and rearing the children.
“You must enumerate it to the court for the unpaid work,” he says.
Inherited land
In May last year, Justice Robert Limo agreed with a woman in Chuka that she was person who was mostly at home for more than 18 years of their marriage.
In the ruling, Justice Limo noted that the woman’s contribution was major in the circumstances and cannot be ignored particularly in the construction of the house they lived in.
The Judge, however, said the land where the house stood was not matrimonial property because the man inherited it from his father and “by Section 6(2) Matrimonial Property the same cannot be considered part of the matrimonial property subject to be shared”.
Justice Limo, however did not leave the woman empty-handed, because she contributed to the building of the house.
He awarded her Sh1.5 million but the amount could have been more had the woman tendered evidence on the value of the house. Matrimonial property include, matrimonial home or homes; household goods and effects in the matrimonial home or houses and any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
Ms Thongori said whoever alleges must prove.
“You must prove both monetary and non-monetary contribution in acquisition and developments of the property,” she said.
