I was in an 11-year romantic partnership. How can I get my share of the property we acquired?

My name is Janet and I’m 38. I was in a relationship for 11 years but we were not blessed with children. Though we lived together, we were not legally married. A few months ago we broke up after I discovered that he had been cheating on me.  

During the time we had been together, we acquired multiple properties, some of which are in joint tenancy and others which are not. This included four plots, three of which are in joint tenancy and one which is in his name. We also bought a pick up, and four motorbikes for gas supply in the estates. The logbooks for these are in his name. In 2019, I took a Sh2 million loan so that we could start building a home in a plot where his name is registered on the title. We have been servicing this debt jointly. We also have a fixed deposit joint account that has about Sh800,000, and have registered a company together which I have been using to get government tenders and run the gas business. Now that we have broken up, my ex has sworn that I won’t get any share in the property we accumulated together because we were not legally married. This has traumatised me. I feel like I am losing my mind. What can I do to get justice? What are my legal rights before a court of law and how can I claim my sweat?

WHAT THE LAWYERS SAY

Esther Masanyangila, an Advocate of the High Court and the founding and managing partner of Masanyangila & Associates Advocates

Subdivision of property between two people who are no longer in a relationship can be a thorny issue. The easiest way out would be negotiations between you and your former lover to reach an amicable solution. In the event that this is not achievable then you can seek help from the courts. Since you are not legally married, you will need to show proof of your contribution in every claim you make. Start with the company. A company is a separate legal entity from an individual and so if you registered a company and both of you own shares, you could still continue to run it jointly or one of you could relinquish their shares in the company for value. 

Property is only referred to as matrimonial property if it was acquired in the course of a marriage by couples who are legally married. When it comes to subdivision of property, courts do not give status to couples that are cohabiting. This means that the property you acquired together will not be subdivided under the matrimonial property regime which is governed by the Matrimonial Property Act. The subdivision will depend on the regime under which it was registered. In the case of land, the property could either have been registered as joint tenancy or common tenancy. A joint tenancy is when land is conveyed to two or more persons without any words to show that they are to take distinct and separate shares. No one co-owner has a better right to the property than the other. 

Common tenancy is where two or more people hold the property in equal undivided shares. Each person has a distinct share in the property. Where a property is registered in the joint names of two people, it is assumed that each person made equal contribution towards its acquisition. This means that for the land with both your names, the court will assume you made an equal contribution. This presumption is however rebuttable by either of you by showing that your contributions were not equal. 

You will have no legal interest where the property in dispute was not registered in your joint names. To claim interest, you will have to prove your respective proportion of financial contribution towards the acquisition or development of the property you are claiming. The courts will have the jurisdiction to allocate to you a portion of the disputed property as it deems just. It may also order a transfer of the share of the property to you.

Harriet Onyiego, an Advocate of the High Court of Kenya, and a Member, Young Lawyers Committee, East Africa Law Society 

Section 3 of the Marriage Act defines marriage as a voluntary union of man and a woman whether in a monogamous or polygamous union and registered in accordance with the act. This then raises the question of whether your relationship can be quantified as a marriage to warrant for matrimonial property division. When evaluating cohabitation, the aspect of presumption of marriage is brought into question. For a presumption of marriage to be said to arise, you will need to establish that there was long cohabitation and acts of general repute. Further, you may need to show that your long cohabitation was not just mere friendship but that it crystallised to be presumed as a marriage. A key thing you need to note is that the presumption of marriage does not create a marriage. It only presumes it. 

This presumption will suffice in the context of a bigger dispute which the court will be called to adjudicate and determine (such as the equal division of property in your case). Section 6 of the Matrimonial Property Act defines Matrimonial Property as the matrimonial home or homes, household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. 

In your case, a declaration of entitlement to property in terms of Section 17 of the Matrimonial Property Act (2013) can be made by either party to the marriage at any stage of the parties’ marriage. The court has the jurisdiction to declare the rights of the parties in relation to any property which is subject to a contestation. The set out procedure provides that if marriage is proven to have existed, a person may apply to a court for a declaration of rights to any property that is contested. This is done through an application of a petition in a matrimonial cause. You should note that property acquired before the marriage would not ordinarily form part of the matrimonial assets unless it has been substantially improved or developed during the marriage by you or by both you and your partner.

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