Spouses to breathe easy over property rights

By Harold Ayodo

Kenya: Real estate investments are splitting marriages down the middle as spouses fight over ownership of matrimonial and personal property.

The problem arises when some spouses claim matrimonial property rights even without contributing financially to the investments.

This has led to some single people to look at marriage with disdain, fearing they would lose their investments when the union hits rock bottom and divorce beckons. Single people with investments in real estate might disregard marriage, fearing that the other person might be after money.

The suspicions of people wanting to marry into wealth are also an issue amongst in-laws who raise eyebrows when their son or daughter is engaged with a lover from a ‘struggling’ background.

New reality

But now, dubious in-laws, and single people will no longer need to hold dating cards close to their chests or under the table, if the Matrimonial Property Bill, 2013, published recently, becomes law.

Part IV of the bill provides for separately owned property between spouses — husband and wife.

It says marriage does not affect the ownership of property other than matrimonial investments, which either spouse may be entitled to, affect the right of either spouse to acquire, hold or dispose of. For property acquired during marriage in the name of one spouse, there shall be a presumption that the investment is held in trust for the other partner.

If investments are acquired during marriage in joint names of husband and wife, there shall be a presumption that their beneficial interests in the matrimonial property are equal.

The bill also provides that when a spouse gives property as a gift to his or her partner, there shall be a presumption that it absolutely belongs to the recipient.

And a spouse is not liable — by reason of marriage — for any personal debt contracted by his or her partner before marriage.

Section 7 of the bill says that ownership of matrimonial property vests in both spouses in equal shares irrespective of the contribution of either spouse towards acquisition. It further says that the property shall be divided equally between the spouses if they divorce or marriage is dissolved.

Where a spouse acquires property before or during marriage and the partner contributes towards improvement of the property, he or she acquires beneficial interest equal to contributions made.

Separately, the Land Act 2012 provides for elimination of gender discrimination in law, customs and practices related to land and property. It further encourages communities to settle land disputes through recognised local community initiatives and affording equal opportunities.

According to Article 68 (c) (iii) of the Constitution, Parliament should enact legislation to regulate recognition and protection of matrimonial property.

Matrimonial home

It particularly seeks to protect the matrimonial home during and on termination of marriage. Moreover, the Land Registration Act 2012 considers marriage a valuable consideration.

According to the Land Registration Act (LRA), spousal rights over matrimonial property are among overriding interests that do not need necessarily to be noted in the register.

Section 93 of the LRA provides that subject to the law on matrimonial property, if a spouse obtains land for co-ownership, there is a presumption that the spouses shall hold the property as joint tenants unless they state otherwise.

The law also requires consent of a spouse before any transaction on the matrimonial property or home.

– The writer is an advocate of the High Court