DIVISION OF MATRIMONIAL PROPERTY IN KENYA

What Property is a Spouse entitled to at dissolution of the Marriage?

 

The question of division of Matrimonial Property arises between parties when their matrimonial union has broken down and a subsequent divorce issued. Division of Matrimonial property is guided by statutes as well as precedent. Under section 6 of the Matrimonial Property Act N0.49 of 2013, matrimonial property is defined to mean-

a)   The matrimonial home or homes

b)   Household goods and effects in the matrimonial home or homes or;

c)    Any other immovable or movable property jointly owned and acquired during the subsistence of the marriage.

It is to be noted that property held in trust or subject to pre-nuptial agreements by spouses have been excluded in the definition. By dint of Article 45(3) of the Constitution of Kenya, parties to a marriage have equal rights during the marriage and at the dissolution of the marriage. This is not to mean that they have a 50:50 share in the property they have during the subsistence of the marriage and after divorce. It denotes equal status of spouses that; each spouse has an equal right to own property, enter into transactions, sue and be sued.

The Matrimonial Property Act essentially regularizes the delineation of dividing matrimonial Property. It stipulates the rights and responsibilities of the spouse in relation to the matrimonial property and connected purposes. In determining how and what a spouse is entitled at the dissolution of the marriage, the court’s main focus is the property acquired during the subsistence of the marriage.

According to section 14 of the Act, property acquired during marriage in the name of one spouse is presumed that the property is held in trust for the other spouse and property acquired in the names of the spouses jointly is presumed that their beneficial interests in the matrimonial property are equal. On that account division of such property requires each party to discharge a burden of prove of his/her level of contribution, whether monetary or non-monetary.

Section 2 of the Matrimonial Property Act gives a provision for consideration of both monetary and non-monetary contribution, which the courts will put into account. Non-Monetary contribution include:

ü  Domestic work and management of the matrimonial home

ü  Child care

ü  Companionship

ü  Management of family business or property

ü  Farm work

Where a spouse acquires property before marriage and during marriage and the property does not become matrimonial property, contribution to its improvement will entitle a beneficial interest to the party that made the contribution. Property inherited by either party does not form part of the matrimonial property but if the other party/spouse contributes to its development he/she will be entitled to the extent of that contribution.

The Act also speaks to spousal liabilities before and during their marriage. Any liability incurred by a spouse before the marriage remains the liability of the spouse who incurred it.

·        Parties to a marriage share liabilities incurred during the marriage for the benefit of the marriage equally.

·        if property becomes matrimonial property, any liability reasonably and justifiably incurred are shared equally by the spouses unless they otherwise agree,

·        Parties to a marriage equally share liabilities or reasonable and justifiable expenses incurred for the benefit of the marriage.

 

Where parties to a polygamous marriage divorce or such a marriage is where parties to a polygamous marriage is dissolve; matrimonial property acquired by the man and the first wife before the man married another man shall be retained equally by the man and the first wife only. The Property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the parties. It is possible for a wife to hold her matrimonial property with the husband separate from that of the other wives. Any wife can own matrimonial property equally with the husband without the participation of the other wife or wives.

 

In the event that one of the spouses gift the other a property during their marriage, that property is presumed to belong absolutely to the receiving spouse.

Marriages under customary law apply customary to the extent that they are consistent with the Constitution of Kenya.

 

In practice, there has been different judicial approaches towards the division of matrimonial property, some being contradictory approaches. For instance a court has held that when property is purchased jointly by spouses and registered in the name of the husband with the wife’s approval, a resulting trust can accrue in her favour. On the flip side another court has denied its power to pass title from one spouse to another.

 

Precedent has though affirmed that a matter that regards the division of matrimonial property ought to have the following proven by either parties-;

Ø  The fact of a valid, legal regular marriage in law

Ø  Dissolution of the marriage by an Order of Court

Ø  That the listed property constitutes matrimonial property acquired and developed during the subsistence of the marriage

Ø  Contribution by each party to the acquisition or development

 

To ensure protection of the rights of parties to a marriage in case of divorce, the Courts of Law will delve into various considerations in determining the division of Matrimonial Property in Kenya.

 

­­­­­­­­­References

     I.        Article 45(3) – Constitution of Kenya 2010

   II.        Section 2 Matrimonial Act (N0.49 of 2013)

 III.        Section 3 Matrimonial Property Act (N0.49 of 2013)

 IV.        Section 4 Matrimonial Property Act (N0.49 of 2013)

   V.        Section 6 1& 2 Matrimonial Act (N0.49 of 2013)

 VI.        Section 7 Matrimonial Act (N0.49 of 2013)

VII.        Section 8 Matrimonial Act (N0.49 of 2013)

VIII.        Section 9 Matrimonial Act (N0.49 of 2013)

 IX.        Section 10 Matrimonial Act (N0.49 of 2013)

   X.        Section 13 & 14 Matrimonial Act ( N0.49 of 2-13)

 XI.        ENN ~VS~SNK 2020 (eklr)

XII.        Karanja ~Vs~Karanja (1976) klr

 

 

 

 

 

 

 

 

 

 

                   

                                                         

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