Marital problems? No one can kick you out

Kenya: Matrimonial property law prohibits eviction of a spouse from family property in case the marriage hits the rocks. Women are seen as the major beneficiaries of this new provision because they are usually the ones evicted during marital problems, writes HAROLD AYODO

No spouse will evict his or her partner at will from a matrimonial property should the marriage hit the rocks, thanks to the Matrimonial Property Act 2013.

In line with Article 45(3) of the Constitution, the new law upholds equality in marriage, which safeguards each spouse’s interests in that union.

In daily practice, some wives are kicked out of family property, with apartments and plots once given to them as gifts ‘demanded’ back after marital disputes.

It has not been strange to see some physically abused wives leaving matrimonial homes carrying their belonging in paper bags. This is now history.

“A spouse shall not — during the subsistence of marriage — be evicted from the matrimonial home by or at the instance of the other spouse, except by a court order,” says section 12(3) of the law.

According to the law, a spouse can only be evicted following a court order to sell the house, trustee in bankruptcy, mortgagee or chargee exercising a legal power of sale.

The law further prohibits transactions (sale, mortgage or lease) of the matrimonial home(s) without the written and informed consent of both spouses.

Lawyers argue that the new provision forbidding spousal eviction is in line with Article 45(3) of the Constitution, which provides for equality in marriage.

Law Society of Kenya Council Member Caroline Khasoa says that spouses should not evict each other from matrimonial home(s) without court orders.

“Article 45(3) of the Constitution is clear that spouses have equal rights at the time of marriage, during and upon dissolution of marriage,” says Khasoa.

Progressive law

Khasoa says that section 12(3) of the Matrimonial Property Act that forbids eviction of spouses from matrimonial home(s) is progressive.

Fida Kenya Senior Legal Counsel Jacqueline Ingutiah says that the law defines a spouse as a husband or wife and matrimonial home as property owned or leased by one or both spouses.

“According to the Kenya Demographic and Health Survey of 2009, the number of women who suffer from domestic violence is far much higher than that of men,” Ingutiah says.

She says there are many instances where a wife is thrown out of her home by her husband directly or indirectly through physical and psychological violence.

“The purpose of the section is to remind spouses that they have no legal right to evict their partners until matrimonial disputes are heard and determined in court,” Khasoa says.

According to Khasoa, the new law is fairly progressive and would protect women from tyranny of randy husbands.

“The law protects both spouses from eviction but women are the ones who are mainly shown the door when marriage hits the rocks,” Khasoa says.

Sylvia Kooke, a lawyer, concurs with Khasoa that section 12(3) of the new Matrimonial Property Act is progressive.

“In many divorce cases, the spouse with the financial muscle — who in many households is the husband — often, evicts the ‘weaker one’ (wife) and children from the matrimonial home,” Kooke says.

Ingutiah says that the section prohibits a spouse from evicting the other unless he/she obtains a court order.

“Any aggrieved spouse can move to court to challenge an attempted or actual eviction,” Ingutiah says.

According to Kooke, the eviction by some husbands leaves the family destitute, compromising its stability by the uprooting of children from their normal surrounding.

“The provision forbidding eviction of spouses is definitely a breath of fresh air to both the husband and wife,” Kooke says.

Khasoa says that spouses who are facing eviction as a result of marital disputes have legal remedies to protect their property rights.

“A threatened spouse can go to the Ministry of Lands and file a preventive caution and also apply for an injunction to prevent eviction during hearing,” Khasoa says.

According to Khasoa, the affected spouse can also apply for co-registration of the matrimonial home.

“If the marriage fails, a spouse can apply to court for his or her matrimonial share, which will be decided based on monetary or non-monetary contribution towards acquisition,” Khasoa says.

Even with the legal provisions forbidding eviction of spouses, Khasoa says that partners must consider counselling before evictions and dissolution of marriage. “The family unit should be protected as dissolution and evictions hurt both spouses and children,” Khasoa says.

According to Kooke, spouses should ensure that property acquired after marriage is registered in their joint names to safeguard continual occupation.

“Joint ownership is important as in the event of death of a spouse, the surviving partner becomes the owner automatically without legal complications,” Kooke says.

Court order

Kooke notes that the law allows a spouse who risks eviction by her partner to seek court orders stopping the vice.

“The court can also order evictions when the conduct of a spouse is either wanting or endangers the children or the other spouse,” Kooke says.

Kooke says that when a marriage breaks up, a spouse with a sentimental attachment to the property has the option of buying out the share owned by his or her partner.

“A spouse can prove that they contributed in non-monetary terms to the acquisition of the property,” Kooke says.

According to Kooke, in instances where there is no agreement as to who should own the property, the court can offer guidance.

“The court can order sale of the property and proceeds divided according to monetary or non-monetary contribution toward acquisition,” Kooke says.

Non-monetary contribution includes domestic work and management of the matrimonial home, family business, property childcare, companionship and farm work.