The revolution in marital property

A new dawn awaits ownership and distribution of property in marriage if Parliament passes draft Bill into law, writes HAROLD AYODO

Disputes over investments accrued during a marriage rage in courts following a divorce petition or separation of spouses. Often, each spouse claims absolute ownership and it is left to judges to distribute the disputed property purely on discretion.

Divorcees, especially women, are known to literally walk away with nothing despite contributing to the accumulated family wealth during the marriage.

Women lose out because property is often registered in the name of their husbands.

Today, Kenya’s divorce courts are still guided by a colonial law imposed 127 years ago. Dubbed the ‘Married Women’s Property Act (MWPA) of England’, this law was ditched 30 years ago by England because it was retrogressive and did not reflect the true circumstances in the country.

Kenya, however, still abides by its clauses. Parliament has not shown any intention of enacting necessary legislation on matrimonial property yet society has changed over the years with more women investing in property as individuals or partnering with their husbands to build their investment portfolio.

Ms Judy Thong’ori

Dr Regina Karega

The draft Matrimonial Property Bill 2007 could drastically reduce the number of legal battles in courts over the division of property by divorced couples should Parliament pass the Bill into law.

Ownership

The proposed law defines matrimonial property as that which the family lives in. It is also described as an investment that provides basic income for the family.

A couple must also agree that the matrimonial home encompasses matrimonial property.

According to the draft Bill, any other property besides what is considered the matrimonial home can be registered under an individual spouse and he or she would then be presumed to be the sole owner of that property.

For instance, a wife may purchase an apartment in Westlands and register herself as the absolute owner. The same principle would apply to her husband should he invest in property and opt not to share ownership with his wife.

"Should the draft become law, couples will be able to own property separately even when married unlike today when most property is divided on divorce," reveals renowned family lawyer Judy Thong’ori.

"If, however, spouses registered property as joint owners, then there would be a presumption of equal interests.

"For instance, should a wife purchase an apartment and register her husband as joint owner, she will be compelled to split the interests equally with him should the marriage turn sour."

Kenya Law Reform Commission (KLRC) drafted the Bill to respond to the current needs of society.

Nancy Baraza, the Commission’s Vice-Chairperson, says the proposed law has factored in numerous proposals suggested by men living in rural and urban areas.

Emerging concerns

"We are stuck with the MWPA 1882 of England yet that country modifies its laws annually in conformity with emerging concerns," Baraza points out. "More people are waking up to the realities of property rights. Traditionally, this was seen as a preserve of men."

Should the Matrimonial Property Bill 2007 be passed to law, the MWPA 1882 of England would become obsolete.

Couples planning to marry are, however, not sure how the provisions of the Bill will affect their unions should it be passed into law.

Brian Musyoka is yet to marry and believes the Bill will turn marriages into contracts if the clauses on separate property are enforced.

"Property rights are important but marriages will become suspect if spouses are allowed to legally own investments separately," he warns.

Judy Kimani, a civil servant, disagrees and sees the intentions of the proposed law to be in line with emerging trends.

"I have invested in bonds and many of my colleagues, who are single ladies, have purchased properties. Most of them would not want their marriages to interfere with these investments," she says.

Thong’ori advises Kenyans not to panic as the proposals in the Bill have good intentions for all.

"The law provides for equity in the division of property that is determined to be matrimonial," she asserts. "Where property is acquired before marriage by one spouse and the other contributes to its development, he or she will acquire a benefit equivalent to contribution made. For instance, if a wife purchases a home in Kileleshwa and the husband invests in its renovation then his share will be equivalent to the money he spent," explains Thong’ori.

Judicial precedents before 2007 show that contribution to matrimonial property included direct and indirect financial contribution such as childbirth, home decoration and household chores. However, in the recent case of Echaria vs Echaria, the Court of Appeal set precedence in that only financial contribution be considered in the division of property between a divorcing couple.

Polygamous unions

The proposed Bill also takes properties acquired in polygamous unions into consideration.

"In the case where a man has more than one wife, the first wife will share out equally all property acquired before the entry of the second wife," explains National Commission on Gender and Development (NCGD) Director Peterlis Nyatuga. "The second wife gets a share of property acquired after her union with the man, not before, and so on with subsequent wives."

In such polygamous unions, the first wife continues to gain a share of all properties acquired after the entry of other wives, the only difference being that the properties will be divided equally between the wives and the husband. In other words, investments acquired after the husband marries a second wife shall be regarded as equally owned by the trio, and so on.

Cases of spouses selling matrimonial property without the consent of their partners, which is rife today, will be illegal. Similarly, spouses who offer property as gifts to their partners and demand them back when the union hits the rocks will be cornered.

The Bill also proposes that gifts between spouses given during marriage be presumed to belong to the recipient. Spouses would also be able to seek orders in court to divide their property without undergoing divorce or separation.

Should Parliament pass the Bill, cases of spouses kicking their partners out of matrimonial homes will be illegal. Thus a spouse cannot evict his or her partner from the home without a court order.

This will ensure security for wives and husbands who no longer have to fear finding their belongings thrown out of the home.

In addition, no spouse will be liable, by reason of marriage, for debts incurred by his or her partner prior to the marriage.

NCGD Chairperson Dr Regina Karega says the proposed law corresponds with current social, economic and cultural changes.

"We are rallying the support of Parliament so that the Matrimonial Property Bill can be passed into law," she says.

At present, the draft Bill is eliciting debate owing to its revolutionary proposals on ownership of property within and after marriage.