Explainer: What the law says about division of Matrimonial Property?
Matrimonial property ownership is determined by each spouse's contribution towards its acquisition.
What you need to know:
- Matrimonial property includes matrimonial home, household goods, and other immovable and movable property jointly owned and acquired during the marriage's subsistence.
- Property acquired or inherited before marriage is not considered matrimonial property.
Imagine being married for close to 30 years, then one day, and suddenly, your partner decides they want to move on without you. What do you do and where do you start?
This is a situation in which some couples find themselves. In fact, according to the National Bureau of Statistics, at least one in every 18 households in Kenya is headed by someone who has been divorced or separated, which is a 16.5 per cent rise in the cases within a decade.
What you need to know
Matrimonial property ownership is determined by each spouse's contribution towards its acquisition and is divided if the marriage is dissolved.
According to the Matrimonial Property Act of 2013, matrimonial property encompasses the matrimonial home, household goods, and other immovable and movable property jointly owned and acquired during the marriage's subsistence.
Kenya Land Alliance Chief Executive Officer, Faith Alubbe asserts that legally, spouses married under Civil Law have equal rights.
“A married woman has similar rights as a married man to acquire, administer, hold, control, use, and dispose of property, whether movable or immovable. Section 8 of the Act also states that in a polygamous marriage, the first wife and the man retain matrimonial property equally if acquired before the man marries another wife.”
Family business
Contribution encompasses both monetary and non-monetary aspects, including domestic work, child care, companionship, family business management, and farm work.
Property acquired or inherited before marriage is not considered matrimonial property, but a spouse contributing to the improvement of non-matrimonial property gains a beneficial interest equal to the contribution.
Ms Alubbe highlighted instances where a spouse can be evicted from the matrimonial property by court order, bankruptcy, mortgagee's power of sale, or other legal remedies.
Worth noting is that Section 3 of the Matrimonial Property Act and Article 24 (4) of the Constitution ensure Muslim constitutional equality in personal status, marriage, divorce, and inheritance matters, allowing the application of Islamic Law.
Sheikh Ibrahim Lethome, an expert in Islamic Law intimates that for Muslims, the property ownership laws are very clear because they also determine how inheritance takes course once one party is deceased. In Islam, a man inherits from his wife and vice versa.
Both parties
When a property is shared half and half, during inheritance, only one half will be subdivided and not the whole property.
“Property that is owned personally, or that which was acquired prior to the marriage is not considered matrimonial property. What is shared when a couple parts ways, is the property that was owned jointly. Property is only matrimonial if both parties agree that it will be shared jointly.”
Mr Lethome adds that if a woman is working, anything she acquires is hers. If she contributed to the acquisition of the property, then she has rights to it. Consideration is always granted to a woman who was not in formal or informal employment if they are able to prove that through their activities, they were able to contribute to the man getting the property. However, he admits that quantifying this contribution can be at times challenging.
For such women, he reminds them of their rights which can help them acquire some wealth during a marriage.
“A man is required to meet all the needs of the woman in the household. Even a working woman is not required to pay a cent of her earnings. Additionally, a woman can even ask for compensation for household work that they do and even for their breast milk.”
