What you need to know about matrimonial property

The national scene has been so consuming that I nearly got carried away. What with the preoccupation with security, the drama in the county governments, the motion against a cabinet secretary and the recharged opposition.

In the midst of all that it is possible to forget that our lives are going on; that beyond politics, people still meet, fall in love and marry or have children; that people are still acquiring property and that others are separating and divorcing.

For the people getting married and those already married, you have two new laws that you must engage with to understand your rights and responsibilities. They are the Marriage Act that commenced on 20th May 2014 and the Matrimonial Property Act that commenced on 16th January 2014. There are some amendments and rules to be made to those Acts to make them truly accessible, but even as they are, they form the laws of Kenya in the respective areas.

While your Marriage Officer may refer to the Marriage Act as you go through the marriage, no one is likely to mention the Matrimonial Property Act until there is a dispute; and then you will hear of the same a lot and may wish you looked at it and understood it while you still could.

The Matrimonial Property Act is the first one of its type in Kenya. Before 23rd December 2013, we did not have local legislation on matrimonial property and we used an 1882 Married Women Act of England, save for  s. 93  of the Land Registration Act that came into effect in late 2012.

The Constitution at S. 68 mandated Parliament to enact legislation to recognise and protect matrimonial property and especially the matrimonial home.

So what is a must know in the Act?

•             Matrimonial property means the matrimonial home or homes, household goods and effects, and any other property jointly owned and acquired during the marriage.

•             A spouse who claims to be entitled to a share of the matrimonial property that is in the name of the other spouse must show that he has contributed to the acquisition or improvement of that property.

•             Contribution  may be financial or non-financial

•             Non- financial contribution includes domestic work, management of the matrimonial home, child care, companionship, management of family business and farm work.

•             In respect of all other property that does not become matrimonial property as defined above, the other spouse will only be entitled to claim to the extent of the contribution that spouse has made to the acquisition or to the improvements.

•             In the case of a polygamous marriage, matrimonial property acquired by the man and the first wife shall be shared equally by the man and the first wife only, if the property was acquired before the man married another wife.

•             Matrimonial property acquired after the other wives are married shall be regarded as owned by the man and wives taking into account any contribution made by the man and each of the wives.

•             Matrimonial property cannot be sold, charged, gifted or otherwise disposed off without the consent of the other spouse.

•             The matrimonial home shall not be leased or mortgaged without the written and informed consent of both spouses.

•             A spouse shall not be evicted from the matrimonial home except by a Court order, by a trustee in bankruptcy or by a mortgagee or chargee in exercise of a power of sale or any other remedy given under any law.

•             A spouse’s interest in a matrimonial property is capable of being protected by a caveat or caution.

Prenuptial agreements;

•             You can enter into an agreement before marriage (prenuptial) to determine your property rights.

•             The agreement can however be disregarded by the Court if it shown to have been influenced by fraud, coercion or that it is manifestly unjust.

•             Good people, let us take charge of our lives by providing for what we intend with respect to matters so close to us; it reduces conflicts and fears.

The Act has 19 sections only.  Read on and find out what “I do” might also mean.

The writer is a family lawyer