Down the aisle with receipts in mind

Spouses are adopting innovative legal ways to investments as debate rages over the controversial Matrimonial Property Bill 2013.

An amendment to the bill, which was passed by Parliament last week, requires spouses to prove their financial contribution towards purchasing of matrimonial property before claiming their share upon divorce.

Partners who may be disadvantaged by the law — either because of their little contribution or the fear that their contribution may be hard to quantify — are seeking ways to protect matrimonial property incase their marriage hits the rocks.

To avoid squabbles in the event of a divorce, these couples are pushing for the registration of the family property either in their children’s names, in trusts or as joint property of the couple.

 “Property registered under names of children is legally protected even when parents’ divorce….the babies remain legal owners even after their parents part ways,” says Donald Rabala, a lawyer.

Joint ownership

Rabala says that as middle-income spouses seek to transfer property to the names of their little angels, some spouses are pushing to be included as joint owners.

“Spouses registered as joint owners are equal in ownership. When one spouse dies then the surviving automatically becomes the registered owner without court battles,” Rabala says.

For fear of unending court battles in the event of a divorce or death of a partner, some couples have chosen to secure their matrimonial property in trusts.

“Family trusts protect assets in many ways, including ensuring children, not their partners, keep their inheritance. It also avoids unwanted claims when you die,” he says.

Even as the rich and wealthy spouses seek legal alternatives to protect interests in matrimonial property, stay-at-home mums have a mountain to climb when divorce beckons.

Currently, courts require that women prove their financial contribution when claiming interests on matrimonial property upon divorce following precedents set in the case of Echaria versus Echaria.

Documented  Evidence

The courts require couples claiming their stake in matrimonial property to produce receipts as documentary evidence towards their financial contribution to purchasing disputed property.

Couples may now have to walk down the aisle knowing that keeping receipts is important.

“Judges can quantify their contribution after they provide evidence, in court, on their duties and responsibilities during marriage,” Rabala says.

According to Rabala, the courts also look at the number of children, years of marriage and when the properties were acquired.

Lawyer Sylvia Kooke says the Matrimonial Property Bill is generally progressive but raises the red flag over the fate of stay-at-home mums.

“Proving direct monetary contribution will be tricky for women who contributed in terms of support to the husband and family,” Sylvia says.

Many cases on division of matrimonial property have dragged in court as women strive to prove and quantify love and affection during marriage.

“How does the typical stay-at-home mum who fulfills her role as a mother, wife and ‘manager’ prove monetary worth of her input into acquisition of property during marriage?” Sylvia poses.

According to her, if the bill passes into law as amended by the National Assembly, mistrust will be created in the institution of marriage.

Stay-at-home Mums

“Spouses will have to keep receipts for any items purchased towards acquisition of any property in marriage as back up incase the union is dissolved,” Sylvia says.

She, however, says a clause under Section 14 (b) of the bill provides some reprieve for stay-at-home mums.

“It provides for a rebuttable presumption that matrimonial property is held at equal beneficiary interest where the investment is in the name of the spouse jointly,” Sylvia says.

According to her, it is incumbent upon women to insist on matrimonial property being registered in both their names (husband and wife).

“The bill also defines contribution to include domestic work, management of the matrimonial home and family business or property, child care, companionship and farm work,” Sylvia says.

It also provides for equal status of spouses and is explicit that a married woman has similar rights to a man to acquire, administer, hold, control, use and dispose of property.

Another lawyer, Caroline Khasoa, says the amendment by Parliament on financial contribution is unconstitutional.

“Parliament is a creature of the Constitution and cannot legislate outside constitutional boundaries,” Caroline says.

She argues that Article 45 of the Constitution provides that spouses have equal rights during and upon dissolution of marriage.

Marital Status

“Article 27(4) of the Constitution outlaws discrimination on grounds of sex, pregnancy, marital status and culture…,” Caroline says.

According to her, the amendment by the National Assembly further offends Article 40, which provides that no person or institution can arbitrarily interfere with the right to own property or right over property as an individual or in associating with others.

“The Constitution also recognises the family as a legal entity. The amendment by Parliament is, therefore, unconstitutional and should be struck out,” Caroline  says.

According to Caroline, spousal property rights are human rights that must be upheld and dignified in line with Article 3 and 28 of the Constitution.

“Matrimonial property rights affect children of the marriage. The rights of those children as enshrined in the family unit must be respected and upheld in their best interest,” Caroline  says.