It is no longer possible to drag a spouse into a property debt acquired before marriage.
The recently enacted Matrimonial Property Act provides that spouses are not solely liable — by reason of marriage — to personal property debts incurred by their partners before exchanging vows.
Provisions of the Act exclusively bar “cunning” spouses from dragging “honest” husbands/wives into paying up loans they never signed for.
“Any liability incurred by a spouse before marriage and relating to property shall after marriage remain the liability of the one who acquired it,” says Section 10 of the Act.
However, liabilities incurred on matrimonial property shall be shared equally between spouses, unless they agree otherwise.
The law further states that spouses are also at liberty to share, equally, property liabilities for the benefit of the marriage.
It provides for equal status of spouses that a married woman has similar rights as a man to acquire, administer control and dispose of property.
Married women can legally acquire, administer, control and dispose of property, enter into contracts, sue and be sued in their own names.
The Act mainly regulates and provides for rights and responsibilities of spouses. The law that came into force on January 16, replaced the outdated colonial Married Women Property Act 1882 that governed matrimonial property.
As the progressive law excites many women, a section of men argue that it legalises the culture of “mine is mine but yours is ours”, which is associated with perceived female gold diggers.
Male critics argue that married women who want to remain “independent” will invoke the law when the marriage hits the rocks and claim to move on.
Moreover, the Constitution also provides that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at its dissolution.
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 a legislation to regulate recognition and protection of matrimonial property.
It particularly seeks to protect the matrimonial home during and on termination of marriage.
Moreover, according to the Land Registration Act 2012, spousal rights over matrimonial property are among the overriding interests that do not need necessarily to be noted in the register.
Section 93 of the Act 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.