Introduction
Primarily, sharing matrimonial property in Kenya is governed by the Constitution of Kenya 2010, the Matrimonial Property Act, the Marriage Act 2014 and all other relevant statutes as well as judicial precedents. Matrimonial simply means related to a marriage. Accordingly, what is matrimonial home? Section 2 of the Matrimonial Property Act defines matrimonial home to mean any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and it includes any other attached property.
What constitutes Matrimonial Property and what doesn’t?
Section 6(1) of the Matrimonial Property Act defines matrimonial property to include the matrimonial home(s), household goods and effects in the matrimonial home(s) and any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
Position of property held in trust under customary law and matrimonial property
Section 6(2) of the Matrimonial Property Act weighs on this and points out that property held in trust under customary law, does not form part of matrimonial property. From Section 6 of the Matrimonial Property Act, it would be safe to conclude that one of the factors the Court considers in sharing of matrimonial property is the nature of the property and whether a prenuptial agreement existed. Under the umbrella of the nature of property, the Court will endeavor to establish whether the property constitute matrimonial property and even the nature of proprietorship. That is whether it is a joint or a tenancy in common ownership and so forth.
Matrimonial Property share in case of a divorce
In Kenya, ownership of matrimonial property vests in the spouses according to the contribution of each towards its acquisition. As such, it is divided between the spouses after divorce, save where a prenuptial Agreement existed. As per Section 7, the Court will also consider contribution of each spouse in determining the share of each. The Court in C W N v B N [2015] KECA 317 (KLR) pronounced itself on this issue and reiterated that;
“The legal principle applicable in distribution of matrimonial property is not in whose name the property is registered; neither is distribution determined by one spouse offering the other a particular property; or the status of marriage. The guiding principle as stated in Echaria -v- Echaria Civil Appeal No. 75 of 2001 is the proportion of financial contribution, either direct or indirect towards acquisition of the matrimonial property.” This translates to financial contribution, domestic work input as well as general support in acquisition of the property for parties disadvantaged for failing to have the means to prove direct financial contribution. A classic example is caring for children and the family at large as your spouse works to earn money to pay for the property, a position finding refuge in Supreme Court decision of JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae).
Beneficial Interest in property acquired before and during subsistence of Marriages
Many a times, a spouse will have acquired properties before a marriage. In some other cases, property acquired during the subsistence of a marriage by a spouse does not form part of the matrimonial property, however, the other spouse makes contribution towards its improvement. This leaves a conundrum on property rights after divorce. Section 9 of the Matrimonial Property Act provides that such a spouse who makes a contribution, acquires a beneficial interest in the property equal to the contribution made. As such, the Court will not overlook the beneficial interest aspect in determining a share in matrimonial property.
Conclusion
In a nutshell and in light of the above, the Court generally considers; nature of the property, existence of prenuptial agreements, contribution of each spouse, beneficial interest, best interests of the children and, conduct of parties in regard to the matrimonial property among other factors to ensure equity and fairness. Find the best ranked divorce Counsels at F.M Muteti & Company Advocates for seamless navigation through your divorce and matrimonial property issues.
