Children have a stake on property after divorce, says court

The High Court has opened the floor for debate on whether children should share their parents’ matrimonial property upon divorce.

In a decision likely to push for change on how spouses share wealth, Justice Reuben Nyakundi found that the law on matrimonial property only focuses on the husband and wife but ignores other beneficiaries of properties bought during a marriage such as children.

“It is common cause that there are other beneficiaries to that property other than the husband and the wife and that is children born out of the dissolved marriage. It can also be argued that the property acquired during the subsistence of the marriage is not only for the benefit of the husband and the wife but the family,” ruled Justice Nyakundi.

Justice Nyakundi said the law is silent on who the children should claim their inheritance from in the event of a divorce.

“The Constitution of Kenya 2010 talks of a family as the natural and fundamental unit of society and the necessary basis of social order. Clearly a family cannot be said to be one without children. This law is silent on what children must get upon dissolution of marriages. What will the children get as inheritance?” he paused. He however found it improper for courts to split matrimonial property in the event spouses have not divorced.

At the centre of a dispute before the judge was a woman named EWM against her former husband MOM and former co-wife ANM. EWM and MOM were married in 1964. She told the court that she was then 15 years and had three children.  MOM married a second wife in 1980 and again bore three children with her. However, the marriage fell apart in 2017, hence ending a relationship that had investments that started with just one cow to a multi-million shillings worth of property.

EWM said when they got married, they were allocated 50 acres of land by their clan in which she farmed maize, then started a beads shop in 1974.

It was out of the proceeds of the Masaai bead business that the couple were able to purchase their first cow and in addition were gifted with a goat by one Mzee ole Ngape.

She claimed the flock had thrived in bounds to 1,500 heads of cattle and 1,000 goats and sheep. The couple also started a hide and skin business and this bought them their first car. Thy then bought a second one alongside property in Loitokitok, Kariobangi, Ngei, Roysambu, South C, Nairobi and Embakasi in Nairobi. She asserted that she has an equal right to the properties in the ratio of 50:50.

MOM denied the allegations including their marriage date. He told the court that they only had 200 cows and 100 goats.

He said his former wife was a house help and could not give an accurate account on their life, including their investments.

He also told the court that his second wife ANM had equally gone for his marriage’s pound of flesh. He revealed that she too had equally filed a separate case also claiming a 50:50 per cent share of the property. Justice Nyakundi gave the man 11 properties while his former wife walked away with five.