HIGHLIGHTS OF THE MATRIMONIAL PROPERTY ACT, 2013
February 12, 2014
HIGHLIGHTS OF THE MATRIMONIAL PROPERTY ACT, 2013
Ochiel J Dudley – Legal Researcher Kenya Law
Date of Assent: 24th December, 2013
Commencement Date: 16th January, 2014
1.1 “contribution” means monetary and non-monetary contribution including-
- domestic work and management of the matrimonial home;
- child care
- management of family business or property; (See definition below)
- farm work;
1.2 “family business” means a business run for the benefit of the family and generates income or other resources for the benefit of the family;
1.3 “matrimonial home” means property owned or leased by one or both spouses and occupied by the spouses as their family home
- extends to any property attached to the matrimonial home (would cover servant quarters, gardens, extensions);
1.4 “matrimonial property” means either the:
- the matrimonial home
- household goods and effects in the matrimonial home
- any movable or immovable property jointly owned and acquired during the marriage
- trust property, including property held in trust under customary law, does not form part of
1.5 “spouse” means a husband or a wife
2. APPLICATION OF ISLAMIC LAW (Section 3)
- People who profess Islamic faith have the option of Islamic law in all matters relating to matrimonial property.
3. EQUAL STATUS OF SPOUSES (Section 4)
A married women has same rights as a married man—
- to acquire, administer, hold, control, use and dispose of property whether movable or immovable;
- to enter into a contract; and
- to sue and be sued in her own name.
- property acquired or inherited before marriage not part of the matrimonial property
4. RIGHTS AND LIABILITIES OF INDIVIDUALS (Section 5)
- Immovable or movable property acquired or inherited before the marriage do not ordinarily form part of matrimonial property
5. PRENUPTIAL AGREEMENTS (Section 6(4))
5.2 parties to an intended marriage may enter into a prenuptial agreement to
determine their property rights
5.3 Courts may prenuptial agreement aside on the grounds of fraud, coercion or manifest injustice.
6. OWNERSHIP OF MATRIMONIAL PROPERTY (Section 7)
- Where there is no prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided (not equally) between the spouses (emphasis supplied)
7. PROPERTY RIGHTS IN POLYGAMOUS MARRIAGES (Section 8)
If the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved
- matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife
- matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the parties
- it is possible for a wife to hold her matrimonial property with the husband separate from that of the other wives; any wife can own matrimonial property equally with the husband without the participation of the other wife or wives.
8. ACQUISITION OF INTEREST BY CONTRIBUTION (Section 9)
- A spouse who makes a contribution towards the improvement of a non-matrimonial property, acquires a beneficial interest in the property equal to the contribution.
9. SPOUSAL LIABILITIES ( Section 10)
- Any liability incurred by a spouse before the marriage relating to the property shall, after marriage, remain the liability of the spouse who incurred it.
- Parties to a marriage share any liability incurred during the marriage for the benefit of the marriage equally.
- any liability reasonably and justifiably incurred shall be be equally shared by the spouses, unless they otherwise agree, if the property becomes matrimonial property
- Parties to a marriage shall equally share liabilities or reasonable and justifiable expenses incurred for the benefit of the marriage.
10. CUSTOMARY LAW (Section 11)
10.1 Customary law principles, subject to the Constitution, may be considered in division of matrimonial property,
10.2 The principles of customary law applicable to division of matrimonial property include
- customary laws relating on divorce or dissolution of marriage;
- protection of rights of future generations to community and ancestral land (Article 63 of the Constitution);
- access and utilization of ancestral land and the cultural home by a wife, or former wife
11. SPECIAL PROVISIONS ON MATRIMONIAL PROPERTY (Section 12)
11.1 Matrimonial property cannot be sold, leased or mortgaged during a monogamous marriage without the consent of both spouses.
11.2 Spouses in marriages, including the man and any of the man’s wives in the case of a polygamous marriage, have an interest in matrimonial property capable of protection by caveat, caution / or any law in force on registration of title deeds.
11.3 A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.
11.4 A spouse shall not be evicted from the matrimonial home by any person except-
- on the sale of any estate or interest in the matrimonial home in execution of a decree;
- by a trustee in bankruptcy; or
- by a mortgagee or chargee in exercise of a power of sale or other remedy
- 11.5 The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses.
Commentary on Section 12(1)
Section 12(1) would imply that spousal consent in disposing of matrimonial property is only required in monogamous marriages. The position as to spouses in polygamous marriages including those living in the matrimonial home or those who co-own the home seems unclear and inconsistent with the provisions of the Land Registration Act, Cap 300.
It is instructive to note that, vide section 5, the Land Registration Act, Cap 300 prevails over practices or procedure relating to land in any cases of inconsistency. Predictably, section 12(1) the Court might soon be called upon to resolve the ambiguity.
12. SEPARATE PROPERTY (Section 13)
Marriage does not affect the right of either spouse own, or dispose of any property other than matrimonial property
13. PRESUMPTIONS AS TO PROPERTY ACQUIRED DURING MARRIAGE (Section 14) Where matrimonial property is acquired during marriage—
- in the name of one spouse, there is a presumption that the property is held in trust for the other spouse; and
- in the names of the spouses jointly, there’s a presumption that their beneficial interests in the matrimonial property are equal.
14. GIFTS TO A SPOUSE (Section 15)
- Where a spouse gives any property to the other spouse as a gift during the marriage, there’s a presumption the gift belongs absolutely to the receiving spouse.
15. LIABILITY FOR PREVIOUS DEBTS (Section 16)
- A spouse is not liable, solely by reason of marriage, for personal debts incurred by the other spouse before the marriage
16. COURTS ACTIONS (Section 17) A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse
- in accordance with prescribed procedure;
- as part of a petition in a matrimonial cause; and
- en if a petition has not been filed under any law relating to matrimonial causes.
- Liability incurred by spouse on matrimonial property before the #marriage remains the liability of the spouse who incurred it
NOTE: The Married Women Property Act is no longer applicable to matrimonial causes Kenya
Commentary on Act
The Act which takes into account non-monetary contribution to the acquisition of matrimonial property renders the five bench Court of Appeal decision in Court of Appeal decision in Echaria v Echaria, bad law. The Court of Appeal held that non-monetary contribution in kind did not count and that a wife had to prove direct financial contribution. The Act should bring some fairness in the acquisition, ownership and division of matrimonial property in Kenya.