What every widow needs to know about matrimonial property rights
Widows’ rights to marital property depend on whether their marriage was legally registered to classify them as wife and husband.
What you need to know:
- For someone to be called a widow, it means she was a spouse. For someone to be a spouse, it means their marriage was official.
- A wife remains in possession of the matrimonial property upon her husband's death through a process of succession.
These are questions often asked during women empowerment forums held nationwide according to grassroots land rights defenders.
In this explainer, we speak to lawyers to answer the questions.
Widows’ rights to marital property depend on whether their marriage was legally registered to classify them as wife and husband.
“For someone to be called a widow, it means she was a spouse. For someone to be a spouse, it means their marriage was official,” explains Land Alliance chief executive officer Faith Alubbe.
According to the Marriage Act of 2014, marriage is the freely chosen union of a man and a woman, whether they are monogamous or polygamous, and it is legally recognised through five distinct rites: civil, religious, customary, Hindu, and Islamic.
Under the Matrimonial Property Act (2013), matrimonial property entails matrimonial home or homes, household goods, and effects, immovable and movable property jointly owned and acquired during the subsistence of the marriage.
The law defines matrimonial home as any property that is owned or leased by one or both spouses and occupied or utilised by the spouses as their family home, and includes any other attached property.
However, trust property, including property held in trust under customary law, does not form part of matrimonial property. The law recognises a pre-nuptial agreement to determine the spouses’ property rights.
Matrimonial property
In that case, either spouse can apply to the court to set aside the agreement. The court can only do so if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.
“A wife remains in possession of the matrimonial property upon her husband's death through a process of succession,” adds Faith.
“The process is very quick if there are no disputes.”
“She just goes to the chief for an endorsement letter acknowledging that the husband was living in the area and he or she knew them as married,” she says.
“She also needs other documents like the death certificate, and burial permit to submit to court to be made a sole administrator of the property.”
The process becomes complicated for the women who cohabitate.
“In the come-we-stay arrangement, there is no documentation to show that they were husband and wife. When the partner passes on, the woman has to go to court for the presumption of marriage decree,” Faith expounds.
“Then after the presumption of marriage decree, she can proceed with the succession as the widow.”
Federation of Women Lawyers - Kenya, senior legal counsel, Dennis Otieno, outlines the process for a widow whose husband left no will.
“In the intestate succession, the widow will need a beneficiaries’ letter prepped by the chief, a copy of the death certificate, and a copy of recent searches of land and vehicles, then bank account numbers as well as copies of share certificates for shares in companies among others,” he elaborates.
