Harold Ayodo

Joint property ownership among spouses has torn many families apart.

Often, it is the men who have the last laugh during division of matrimonial property as the investments are mostly registered in their names.

Matrimonial property refers to property acquired during marriage or developed within the union even if registered in the name of one spouse.

The country has never had written laws on matrimonial property and relied on the Married Women’s Property Act of 1882 of England. Ironically, England found the Common Law on property wanting over 30 years ago yet we still hang on to it. Society has changed over the past century with more women — married and single — investing in property, especially real estate.

Cultural changes

If the Matrimonial Property Bill, 2007 is passed, things will change drastically. The Bill is gaining popularity as the National Commission of Gender and Development (NCGD) holds more interactive workshops. The Kenya Law Reform Commission (KLRC) says the Bill defines property in marriage, which is non-existent in current laws.

KLRC vice chairperson Nancy Baraza says the Bill contains views from majority of citizens.

NCGD chairperson Dr Regina Karega says the Bill corresponds with current social, economic and cultural changes. For instance, in the Bill, a spouse cannot evict his/her partner from the matrimonial home without a court order.

Cases of husbands selling or charging the family home without either knowledge or consent of their wives will not occur again.

Clauses in the Bill say property determined to be matrimonial will be shared equally amongst spouses. Family lawyer Judy Thongori says the Bill has sections that enable spouses to seek orders to divide their property without divorcing or separating.

Sections of the Bill on division of property bought buy a spouse and developed by his or her partner has generated heated debate. For instance, according to the Bill, if a wife buys a home and the husband spends money to renovate it then he will acquire benefit equivalent of his contribution.

Judicial precedents until 2007 showed contribution to matrimonial property included direct and indirect financial contribution (child birth).

The Court of Appeal – in the case of Echaria vs Echaria -however, ruled in 2007 that only financial contribution should be taken into consideration between spouses.

The writer is a lawyer and journalist.