50% of marriages end up in mutual separation or divorce. Despite the “love hearts” in our eyes and the promise “till death do us part”, sometimes things go wrong. You can’t seem to agree with your partner, the relationship has become toxic, or it’s an unsafe environment for you and your kids. Many people do not leave these bad relationships for fear of the impact on their financial stability. They didn’t sign a prenup or have become financially dependent, for whatever reason, on their spouse. There’s an underlying threat that they will lose all claim on their assets if they leave the marriage.
Enter the Matrimonial Property Act (2007). It is a relatively new law and prescribes a different way of doing things given our traditional patriarchal view of property ownership. The Act protects the rights of both parties in a marriage. It defines the matrimonial property, the rights and responsibilities of each party and gives a recourse in the event of a dispute. While it is often misinterpreted to benefit women disproportionately, the law considers both parties equal in front of the law in line with the rights bestowed by the Constitution of Kenya that state “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.” and stipulates that “Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage,”
What is matrimonial property?
The Matrimonial Property Act defines matrimonial property as the common home(s), household effects, and any other immovable and movable property jointly owned and acquired during the marriage. Matrimonial property excludes either spouses’ assets before the marriage’s commencement—unless the parties use the asset during the marriage, such as the marital home. Thus, any investment or property acquired before marriage remains in the name of the partner. At the same time, any property jointly acquired during the subsistence of the union, whether the contributions of each party are monetary or non-monetary, is considered matrimonial property.
The Matrimonial Property Act bestows various protections to parties in marriage regarding assets defined as marital property. Such property cannot be leased, sold or mortgaged without spousal consent. A partner in a marriage cannot dispose of matrimonial property without the permission of the other party. This protection gives the marital parties equal rights despite who has access to the title deeds. It also provides for parties to put caveats/cautions on such property to require multi-party approvals. Further, you cannot evict either party from the matrimonial home or bar them from using the assets without a Court Order.
If matrimonial property is clearly defined, why are there so many disputes?
Proof of Marriage
A significant challenge most parties face when going through the division of matrimonial property is proving the existence of a marriage. Currently, the law in Kenya recognises five systems of marriage. It is the couple’s responsibility to ensure that the marriage is registered and a marriage certificate is then issued. This certificate is a vital tool as it confers certain rights to the parties. It also validates a marriage and particularly in matters of matrimonial property. Once you have marital rights, you have a legal claim to the property acquired during the marriage.
Proof of Contribution
The purpose of the Matrimonial Property Act was essentially to protect the rights of the wife. Traditionally, the man would acquire property in his name whether the wife made monetary or non-monetary contributions. More often, women are said to make indirect contributions in the marriage. The Kenyan law acknowledges the same and defines “contribution” as both monetary and non-monetary. Non-monetary contribution is considered any acts designed for the family’s management and benefit, such as control of the family business, domestic work, child care, companionship, and farm work.
However, the law is silent on what would constitute proof of contribution and how such contributions should influence how matrimonial property is shared. The Court makes an implausible request that parties prove non-monetary contributions by way of receipts, which discriminates against the party that lacks a record of the same. As a result, many Court decisions lack uniformity because there are no clear guidelines or a consistent system or valuation methodology to prove and measure one’s contribution. To protect the rights of all parties at the dissolution of a marriage, the Courts need to harmonise the provisions of the law, providing a standard and fair system of division of matrimonial property that would.
That said, whether you work or stay at home spouse, the prudent thing to do is keep a record of your monetary and non-monetary contribution in that marriage. Second, it is advisable to include both names on title documents during the acquisition of any matrimonial property.
Matrimonial property is any property that is acquired or utilised during the subsistence of the marriage. All parties have equal rights on the property whether they contributed to acquiring the property monetarily or non-monetarily. You can only exercise a legal claim on the property if you can prove that you were married to the other party and have evidence showing that you contributed to the property. As we wait for the Court to harmonise the law, the division of property upon the dissolution of a marriage is disparate and may or may not favour you. Keep a record of your contribution to any assets acquired, including any business you start or run together, any assets purchased or investments made. Regardless of the marriage system you choose, ensure that you legalise it by obtaining a marriage certificate. That visit to the Attorney General’s office or the Kadhi’s Court could save you a lot of grief. But if this seems like too big a task or you want to avoid a litigious dissolution to your marriage, consider getting a prenup before you say I do.