Divorce: Does property registered individually have to be shared?

Q: Where does the law stand now about property division upon divorce? Does property registered individually, not jointly, have to be shared?

The Matrimonial Property Act, 2013 is the current law that provides on how spouses should share property upon divorce.

For starters, the law says that matrimonial property is owned according to the contribution made by the spouses in either acquiring or improving the investment.

It may sound awkward but it may be reasonable for a spouse to keep receipts, which may later come in handy to prove financial contributions made towards acquiring or improving matrimonial property.

Matrimonial property refers to the matrimonial home, household goods and effects in that home, and any other movable or immovable property jointly owned and acquired during marriage.

The law does not restrict contribution to money but also includes child care, domestic work, companionship, farm work, and management of the family business.

Contributions are important since property that was owned by one spouse can become matrimonial property over contribution to its improvement by the other spouse.

The spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made. Unfortunately, the contributions of many women towards acquisition of matrimonial property are largely non-monetary and hard to prove in court.

When the marriage hits the rocks over irreconcilable differences and the couple resolves to part ways before a court of law, the elephant in the room – apart from child custody – is how to divide matrimonial property.

According to the Matrimonial Property Act, the property is supposed to be split between the partners in line with their contribution to acquisition.

The question of proving contribution has over the years ignited a raging public debate that recently forced the Federation of Women Lawyers (Fida-Kenya) to move to court.

The women lawyers’ body may have relied on a provision in the Constitution that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

Fida – in its High Court petition in 2018 – proposed   a 50/50 split of matrimonial property upon divorce, which the High Court frowned at.

High Court Judge Justice John Mativo ruled that sharing of matrimonial property equally between spouses would open the door for a person to get into marriage and- in the event of a divorce - walk out with more than he or she deserves.

Property owned and registered individually may not be shared especially if the spouses entered a prenuptial agreement before marriage to determine their property rights.

However, a court can set aside a prenup if proved that it was either influenced by fraud, coercion or its terms are unjust.

Prenuptial agreements on separate or individually owned property should be in writing as if property is acquired during marriage in the name of one spouse, there is a presumption that it is held in trust for the other spouse.