Women and matrimonial property: Protecting your rights

From sharing matrimonial property in a divorce to what happens after a spouse’s death, Family Lawyer Frank Oriku offers tips to help safeguard your rights:

What should women know about family property during marriage in Kenya?

Women should be aware of their rights to matrimonial property as outlined in the Matrimonial Property Act of 2013.

Can you explain some of the key provisions of this Act?

Section 6 defines matrimonial property as property acquired during the marriage, including the matrimonial home, household goods and anything jointly owned. Then there’s Section 7, which emphasises that ownership depends on the contributions made by each spouse. Contributions can be monetary or non-monetary, such as childcare or housework. Finally, section 8 highlights the importance of registering property jointly to avoid disputes.

How do you quantify non-monetary contributions such as childcare?

Courts have recognised non-monetary contributions in cases such as Echaria v Echaria (2007), where the Court of Appeal held that non-monetary contributions such as childcare, domestic work and emotional support are as valuable as financial contributions. Evidence of these contributions may include testimony or circumstantial evidence of participation in family life.

What happens when a couple divorces?

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In the event of divorce, the division of matrimonial property is governed by the Matrimonial Property Act 2013. According to Article 45(3) of the Constitution of Kenya, 2010, spouses have equal rights to property on dissolution of marriage. However, each spouse must prove his or her contribution to the acquisition of the matrimonial property under Section 7 of the Act. If the parties can’t agree, the court determines a fair division based on these contributions.

Suppose the woman took out a loan to help with family investments. What happens?

Contributions such as loans for family investments are recognised under section 2 of the Matrimonial Property Act, which defines ‘contribution’ to include monetary and indirect contributions. In TMW v FMC (2018), the court recognised a wife’s loan used for family investments as part of her contribution.

What about when a party’s contributions are not well documented?

In cases of undocumented contributions, the court relies on circumstantial evidence or testimonies. In Nderitu v Nderitu (1997), the court held that evidence of ownership or indirect contribution could be inferred from the parties' conduct during the marriage.

If a spouse dies without leaving a will, what happens to the family property?

In such cases, the Law of Succession Act (Cap. 160) comes into play. Under section 35, the surviving spouse has a life interest in the matrimonial home and other property, but this interest ceases if the spouse remarries. The property is then divided equally between the children. In addition, section 3(2) recognises customary law in matters of succession, but only if it doesn’t conflict with statutory law.

Why does the law favour children when a woman remarries?

The law assumes that the remarriage of the surviving spouse could lead to a redistribution of family assets to the new family, potentially to the detriment of the children of the deceased. This ensures that the children’s inheritance rights are protected.

What happens if you have to deal with a case where the relationship wasn’t legally documented at the time of death and there is no will?

In such cases, the court may consider evidence of a long-term relationship under Section 29 of the Law of Succession Act, which recognises dependants as those maintained by the deceased before death.

What happens in a situation where the deceased has left what appears to be an unfair will?

Under Section 26 of the Succession Act, the aggrieved party can apply to the court for an equitable provision, as in the case of Rono v Rono (2005). The court has the discretion to amend the will if it’s considered unfair.

What steps can women take to protect their rights in the event of a succession dispute?

Women can do several things. Firstly, they can apply for letters of administration under the Law of Succession Act to manage the deceased’s estate. If they’re unfairly excluded from the inheritance, section 26 allows them to petition the court. And, of course, they can rely on Article 27 of the Constitution, which guarantees equality and prohibits discrimination.

Do you have any advice for women on succession planning?

Encourage your spouse to draw up a valid will per the Law of Succession Act to avoid disputes. Also, make sure that the property is registered jointly. Be familiar with Section 29 of the Act, which outlines the rights of dependants, including spouses and children, to claim inheritance. And always seek legal counsel when dealing with succession issues.

What happens to the inheritance if the husband dies intestate in a polygamous family?

Good question. In polygamous families, Section 40 of the Law of Succession Act provides that the estate is divided according to the number of houses. Each house is treated as a single unit and the property allocated to each house is then divided equally between the children of that house. The courts often intervene to ensure fairness where necessary.

What key rights should women assert when it comes to family property and inheritance?

Women should assert their right to non-discrimination under Article 27 of the Constitution to ensure that they can inherit property on an equal basis with men. They should also claim their life interest in the matrimonial home under Section 35 of the Succession Act. If there are unfair distributions, they can challenge them under Section 26 of the Act. And, of course, they should ensure that any property acquired during the marriage is recognised as matrimonial property under the Matrimonial Property Act.