By: Kendi Latoya

The division of matrimonial property in Kenya is governed by the Matrimonial Property Act No.49 of 2013. Under the said Act, matrimonial property is defined as either matrimonial home or homes (this is a home owned by one or both spouses and is utilized as their family home), household goods and effects in the matrimonial home or home and immovable property jointly acquired and owned during the subsistence of the marriage. The law excludes trust property and where there is a prenuptial agreement before marriage.

Movable or immovable property acquired or inherited before marriage does not form part of matrimonial property. However, in cases where a spouse makes improvements to a non-matrimonial property, they acquire a beneficial interest in the property equal to the contribution made.

When it comes to prenuptial agreements, a party can apply to court to have it set aside, and the court can set it aside if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

The ownership of matrimonial property vests in the spouses according to each of their contribution (whether monetary or non-monetary).   Upon dissolution of the marriage, each spouse is required to prove their contribution to the property to aid in division of the property between them.  The matrimonial property Act does not provide that the properties should be divided equally.

In polygamous marriages, property acquired by the husband and his first wife prior to him marrying another wife are retained equally by the man and first wife only.   Any purchases done subsequently by the husband after he marries another wife are considered owned by the husband and his wives, taking into account the contributions made by the parties. It is also important to note that in polygamous marriages it is possible for a wife to own property with the husband separate from the other wife or wives.

When it comes to selling, leasing or mortgaging of property, the same cannot be done during   the subsistence of a monogamous marriage without the consent of both spouses first had and obtained. It is also important to note that a spouse cannot evict the other from a matrimonial home except by an order of the court.

Where one spouse acquires property in his name alone, there is a rebuttable presumption that the property is held in trust for the other spouse and where the property is acquired in the joint names of the spouses, there is a rebuttable presumption that their beneficial interests in the matrimonial property are equal.

In terms of liabilities, spouses are not liable, solely by reason of marriage, for personal debts incurred by either of them before the marriage.

Application to court for division/declaration of rights to matrimonial property that is contested may be done either as part of a petition in a matrimonial cause and even where a petition has not been filed under any law relating to matrimonial causes.

Please contact us if you require further advise on the above subjects.
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Disclaimer:
This information provided in this Article is intended as a general overview of the subject dealt with. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Kendi & Company Advocates is not responsible for any actions taken or not taken on the basis of this information.