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If death or divorce do us apart, who gets the BMW?

Sunday Magazine
 If death or divorce do us apart, who gets the BMW?

The new Matrimonial  Property Act came into effect In 2013, and with it came new laws on matrimonial property ownership and division in the event of divorce or death of a spouse. Do you know your rights?

Harold Ayodo, a practicing attorney with the High Court of Kenya, explains the finer details.

Prior to marriage, if say a man or a woman owned property then got into the union and years later divorced, is this earlier owned property up for contest in the case of property division?

No. The new Matrimonial Property Act provides for separate property of spouses. Therefore, spouses can agree (probably in writing) among themselves that the property they owned before walking down the aisle would remain as such in case the marriage hits the rocks.

The law is clear that marriage does not affect property ownership (other than matrimonial property which either spouse may be entitled to) or affect the right of either spouse to acquire, own or dispose any property.

Do land title deeds allow for two owners under 'name of owner'? So how can the listed one prove contribution towards investments made when the deed off ownership doesn't bear their name?

First, the law provides for joint ownership of property which means both spouses can have their names registered on a title deed or certificate of lease as joint owners with equal property rights.

Separately, in case a marriage ends in divorce and the wife was a house wife whose name was not included in the title deed as a registered owner, she will not walk away empty handed as the law will look into her non-monetary contribution towards the acquisition of the said matrimonial property.

For starts, non-monetary contribution includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work. The law considers non-monetary contribution as had the wife not been active in taking good care of the home then the husband would not have the motivation and peace of mind to acquire property.

What does the law say regarding division of property between couples 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?

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.

What makes a will vulnerable to being revoked after the estate owner dies?

A will can only be revoked via a court order. This is however not easy as the person who has made the application for cancellation must adduce sufficient evidence stipulating that the will is invalid or was written through coercion.

If say a married couple owns some investments (land, houses etc.) and one of them starts squandering it, is there anything the aggrieved party can do to stall or stop any sale?

Yes, the affected spouses may seek a court order stopping the alleged squandering. It can also issue instructions that proceeds (for instance rent) be deposited in a court account for spouses to each get their equitable shares.

If a man dies with many debts, e.g. bank loans, are these automatically deemed void or are there any that are taken on by the surviving spouse?

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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