Ex-spouses in Kenya have to prove divorce in property row

Justice Aggrey Mchelule (left) with Chief Registrar Anne Atieno Amadi at the Milimani courts during a court users’ committee open day. PHOTO: FIDELIS KABUNYI

KENYA: The High Court in Nairobi has ruled that separated spouses cannot divide their matrimonial property unless they are formally divorced.

The decision by two High Court judges said spouses who either have a pending divorce case or have separated and not sought a divorce, could seek to resolve the issue of entitlement to property and not to divide it.

Justices Aggrey Muchelule and Margret Muigai said the court lacked powers to subdivide co-owned property during an existence of marriage.

The two judges were of the view that the matrimonial property law required parties to prove that they are divorced before the court decides if the property in question should be divided or not.

“The court does not have jurisdiction under section 7 of the Matrimonial Property Act 2013 to divide matrimonial property between an applicant and the respondent (a wife against a husband who had separated) during unbroken coverture,” the ruling read in part.

It added: “It would appear that under section 17 of the Matrimonial Property Act 2013, whether there is a divorce matter pending, or where, for whatever reason, he can no longer live together with the other spouse and is not seeking to divorce they can come to court to resolve questions about the beneficial entitlement.”

“He can issue declaratory orders which are intended to do no more than declare the nature of interest that is claimed. The court will declare each party’s beneficial interest in the matrimonial property without severing the same.”

The case had been brought to court by a woman who had separated from her husband over allegations of cruelty.

The two were married for 20 years and had three children. However, sometime in 2010 the woman walked out of the marriage.

In her application, she told the court that a property in Lavington ought to have been sold and each party given their share of the proceeds as they were joint owners.

She said the piece of property and the land on which it was built were bought using their joint funds during their period of marriage and was only held on her behalf and in equal shares by the man.

However, the man told the court that the 1882 law ceased to exist after Kenya’s 2013 Constitution was promulgated.

He submitted the arguments by his estranged wife did not hold water as she was seeking division of matrimonial property when the marriage had not been formally broken.

“A spouse seeking distribution of matrimonial property has to show that there has been divorce or dissolution of marriage,” the judge said, adding that there was a pending matter in this case.