My husband wants to sell our city home without my consent

Dear Vivian,

I got married six years ago in a civil wedding. We later acquired a matrimonial property in Nairobi’s Buruburu. I took a bank loan to help with the finishing of our house, including the interior design. Last week, some people visited our home and informed me they had been negotiating with my husband to buy the home. I wasn’t aware of this transaction and I do not approve of it as we would be left homeless. Does the law consider my disapproval?

Christine Mugambi,
Nairobi

Dear Christine,

The law will definitely consider your lack of consent. Spousal consent is a requirement for a successful sale, charge, lease or gift of matrimonial property.

Both spouses must be aware of the transaction and agree to it. The spouse not consenting can register a caveat or caution with the land registrar to hold the transaction. The law further requires that the consent be in writing.

You have the right to seek independent legal advice to help you understand the nature of the transaction and its legal implications. This consent should be free from any undue influence, duress, misrepresentation, or any other vitiating factors that would blur giving of an independent consent.

Where a spouse holds land or a dwelling house in his/her name individually and undertakes a sale, the purchaser shall enquire whether the spouse has consented. If consent has not been obtained and the non-consenting spouse challenges the sale, then the transfer to the purchaser is void. This concept is what is known as spousal consent. But for the consent to take effect, you must prove that you are a spouse.

The requirement of spousal consent before matrimonial property is disposed of helps in protecting the constitutional right enshrined under Article 40(2) (c), where Parliament is mandated to enact laws that guard against arbitrary deprivation of a person of property of any description or of any interest in, or right over, any property of any description.

Matrimonial property has been defined under the Land Registration Act and the Matrimonial Property Act as any property acquired during the subsistence of marriage by one or both spouses for the use of the family.

It is also important to note that the law recognises that where property is acquired by one of the spouses before marriage but on getting married the other spouse contributes to the development of that property, such a spouse acquires a beneficial interest in the property.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).