What happens to shared property after divorce?

Some real estate companies managed by spouses experience turbulence when their union hits the rocks. It often turns ugly when the spouses, who are co-directors, opt for either separation or divorce before engaging in fights to control the investments. Consequently, the battle to control fortunes occasionally ends up in court as the spouses fight to control their fortunes. A spouse may rush to court seeking orders to control their shares or freeze the company bank accounts until the case is settled. How can tenants operate in case of such disputes?

Mercy, Nairobi

Some of these disputes affect tenants whose landlords are spouses and directors of the firms that own the houses. The tenants may receive separate legal letters from the spouses demanding rent.

Some judges may order that the rent and other income be deposited in court until the completion of the cases.

Legally, when spouses are separated or divorced, nothing prevents them from exercising their rights and powers as directors. Similar rights extend to separated women who buy property and register them under their names. These are considered personal property and they either sell or write Wills on how they should be disposed of or who should inherit upon death.

If separated spouses reconcile, any property bought while they were apart remains separately owned. However, they can agree, in writing, that the houses or plots bought when separated become common or joint property.

A deserted wife can go to court for orders to protect property she obtained after the desertion. A wife or husband can seek orders to freeze the bank accounts of each other if they can prove either has intentions to sell matrimonial property.

Legally, investments in a real estate company by spouses cannot be shared as any matrimonial property when the marriage ends.

There are instances when a judge may order the disputed property to be sold and money distributed according to the proportion each spouse contributed. But the tides have changed as after separation or divorce, courts may order on division of assets acquired during marriage.

The court has powers to order the sale of property and a division between the parties of the proceeds of the sale.

But for separated or divorced spouses who own companies with shares, the investments are not considered matrimonial property. They will continue holding their shares, rights, responsibility and powers. Their investments can only be shared in line with company law, which mainly considers the percentage of shares a director holds.

- Harold Ayodo is an Advocate of the High Court of Kenya