Confusion over Kenya’s matrimonial property law

Legal experts have raised concern that some provisions of the Matrimonial Property Act are in conflict with the Constitution on property rights. [PHOTO: FILE/STANDARD]

NAIROBI: Concerns have emerged over provisions of the Matrimonial Property Act that are in conflict with the Constitution on property rights.

Sections 7 and 8 of the recently enacted Matrimonial Property Act takes away property rights during marriage and predicate them to divorce.

Section 7 says: “Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

Further, Section 8 of the Act provides for division of property in a polygamous family upon divorce.

At a recent continuing professional development seminar on family law, lawyers said the provisions are unconstitutional as they impose conditions to enjoyment of property rights.

Judy Thongori argued that Article 45(3) of the Constitution entitles spouses to equal rights at the time of marriage, during and at dissolution of the union.

The argument is that an Act of Parliament (Matrimonial Property Act) cannot override the Constitution by taking away property rights during marriage and predicate them on divorce.

Thongori, who presented a paper titled, Jurisprudence on the Matrimonial Property Act 2013, said there is a need to amend the unconstitutional sections as legal experts seek ways of getting past the starting point in matrimonial property.

There are more arguments in the Constitution that buttress the legal arguments that the Act is unconstitutional.

For instance, Article 27(4) provides that the State shall not discriminate directly or indirectly against any person on marital status, among several other grounds.

Separately, Article 40 of the Constitution provides that every person has a right, either individually or in association with others, to acquire and own property.

It further states that Parliament shall not enact a law that permits the State or any person to arbitrarily deprive a person of property or interest or right.

According to Thongori, international matrimonial property rights are not also protected locally in line with Article 2(5) of the Constitution, stating that general rules of global laws forms part of the laws in Kenya.

Even with the controversial sections, the Matrimonial Property Act has its positives as it allows couples to enter into prenuptial agreements, which have never been allowed since independence.

It means that couples can mutually agree before marriage whether investments owned before or after marriage would be jointly or separately owned matrimonial property.

It cracks the whip on gold diggers as Section 6(4) provides that a spouse may cancel the agreement through a court order, if it was influenced by fraud or coercion.

The law also recognises contribution by a spouse towards acquisition of matrimonial property - both monetary and non-monetary.

Non-monetary contribution includes domestic work, management of the matrimonial home, family business and property, childcare, companionship and farm work.

The courts also have the duty to determine what amounts to contribution and the entitlement as provided in Section 6(1) of the Act.

For instance, a spouse claiming entitlement to a share in the matrimonial property has to prove that they put in some form of direct, indirect, material or emotional contribution.

The Act also provides that when a spouse gives property as a gift to his or her partner, there shall be a rebuttable presumption that it absolutely belongs to the recipient.

And a spouse is not liable – by reason of marriage – for any personal debt contracted by his or her partner before marriage.

The writer is an advocate of the High Court

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