When love and finances tangle

What does the law say regarding division of property between a couple after marriage breakdown?

The law generally says that upon divorce, the court shall consider both monetary and non-monetary contribution towards acquisition of the matrimonial property. The Constitution is also clear that spouses are equal at the time of marriage, during marriage and end of the union.

What if the union is polygamous and one partner (wife) decides to leave the union.

What claim does she have on the property owned?

In polygamous marriages, matrimonial property acquired by the man and first wife shall be retained equally between them – if the property was acquired before the man married another wife. Matrimonial property acquired by the man after he marries another wife is regarded as owned by him and the wives – taking into account any contributions made by him and each of the wives.

What happens when a married man/ woman dies without a will? Who takes ownership of property?

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According to the Law of Succession Act – when there is no written will, the surviving spouse and children of the departed are the ones to inherit the property.

In Kenya, we often see that after a wealthy man dies, his relatives swarm in and leave his spouse and children out in the cold...what are some of the things a man can do in his lifetime to prevent this from happening?
First of all. It is wrong for relatives to trample over each other over a widow’s property. It is wise for men to write wills specifying on how their property should be divided upon death. Recent court cases are proof that courts usually rule in favour of widows and children.

How about say an unfinished mortgage at the time of death, does the surviving spouse have to finish paying up or does the bank reclaim the house.

No. The law is clear that a spouse is not liable, solely by reason of marriage, for any personal debt contracted by the other spouse prior to their marriage

Is alimony/ maintenance a fact in Kenya? Are there any exceptions?
Yes it is. A court can order a person (husband or wife) to pay maintenance to a spouse or former spouse. Although the Bill is yet to pass into law, it further provides for grounds that a court may issue orders for maintenance. There are grounds for maintenance. For instance, if a person has refused or neglected to provide for or deserted his/her spouse. Other grounds are during the course of any matrimonial proceeding (marriage court case), when granting or after issuing an order for either divorce or separation. Currently, men are also smiling to the bank as the court may order a working wife to pay/ maintain an unemployed husband taking into consideration that he has no source of income. A court order for maintenance may lapse when the beneficiary spouse re-marries. The court may also revoke the maintenance order, if it emerges that it was obtained fraudulently.

What determines the amount of alimony paid?

The court mainly considers the standard of life that the spouse was living and the income of the working spouse.

How does a prenuptial agreement work? What does it entail?

Yes, there is a recently passed law in the country that allows and recognises pre-nuptial (popularly referred to as pre-nups) or ante-nuptial agreements. For starters, a pre-nuptial or an ante-nuptial agreement is a written contract created by two people planning to get married. The agreement typically lists all of the property each person owns, as well as their debts, and it specifies what each person’s property rights will be after they tie the knot.
These specify how property will be divided and whether spousal support (alimony) will be paid in the event of a divorce.

Pre-nuptials are legal in Kenya as Section 6(3) of The Matrimonial Property Act, 2013 provides that the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.
It means that couples are be able to mutually agree before marriage whether investments owned before or after marriage would be jointly or separately owned matrimonial property.
The content of a prenuptial agreement can vary greatly but common provisions are usually for division of property and spousal support in the event of divorce or breakup of the marriage.

Can prenuptial agreements be cancelled?
The same law that allows for pre-nups also cracks the whip on gold diggers as it provides that a spouse may cancel the agreement through a court order, if it was influenced by fraud or coercion!
According to Section 6(4) of the law, a party to the agreement may apply to the court to set aside the agreement – which the Judge may if he/she determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

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