HIGHLIGHTS OF THE MATRIMONIAL PROPERTY ACT, 2013

February 12, 2014

HIGHLIGHTS OF THE MATRIMONIAL PROPERTY ACT, 2013

Ochiel J Dudley – Legal Researcher

Kenya Law

Citation: Matrimonial Property Act, 2013

Date of Assent: 24^th December, 2013

Commencement Date: 16^th January, 2014

Subject: Rights and responsibilities of spouses in relation to matrimonial property

1. DEFINITIONS (Section 2)

1.1 “contribution” means monetary and non-monetary contribution including-

domestic work and management of the matrimonial home;

child care

companionship

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 which 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 which is occupied as their family home

extends to any property attached to the matrimonial home (would therefore cover servant quarters, gardens, extensions);

1.4 “matrimonial property” means either 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

matrimonial property

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 the 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.

4. RIGHTS AND LIABILITIES OF INDIVIDUALS (Section 5)

▪ property acquired or inherited before marriage is not part of matrimonial property

5. PRENUPTIAL AGREEMENTS (Section 6(4))

5.1 parties to an intended marriage may enter into a prenuptial agreement to

determine their property rights

5.2 Courts may set 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, before the man married another wife, shall be retained equally by the man and the first wife only;

◦ 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 made.

9. SPOUSAL LIABILITIES ( Section 10)

Any liability incurred by a spouse before the marriage remains the liability of the spouse who incurred it.

Parties to a marriage share liabilities incurred during the marriage for the benefit of the marriage equally.

if property becomes matrimonial property, any liability reasonably and justifiably incurred are shared equally by the spouses unless they otherwise agree,

Parties to a marriage 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 to divorce or dissolution of marriage;
protection of rights of future generations to community and ancestral land (See 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 (See section 12(1)).

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-

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 to 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 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 before the marriage by the other spouse

16. COURTS ACTIONS (Section 17)

A person may apply to a court for a declaration of rights to any contested matrimonial property in accordance with prescribed procedure-

as part of a petition in a matrimonial cause; and
even where a petition has not been filed under any law relating to matrimonial causes.

NOTE: The Married Women Property Act, 1882 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.

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radiance barno

March 19, 2015

my name is radiance!!! im the last born in a family of three of a single parent,im currently a legal practicioner,i come from an african community with diverse customary origin,bellives and practices,my biological father got married to another woman long after my elder brother was born,we been educated and brought up with the aid of my mother alone, as our father watch the challenges we pass through,my mother is a bussiness person en through his bussiness thats where we get a source of living while our biological father is working as a civil servant,we have never gotten any single assistance from him since i rose to know what is bad and what is wrong,futhermore its very disgusting to be rediculed by his other children who were born in the family,as i futher my studies i find it not fair enough to be locked out of the family inheritance en metrimonial properties especially those that our father acqiured before he married,en monetary upkeep for our existance,on a legal ground as the passion grows aid me with the neccesary defence as i fight this battle.
radiance barno

March 19, 2015

secondly i wish to pass my passionate appeal to my senior councel and learned friend hon the president of the supreme court willy mutunga and olso the judges bench(bench of lords) to concider the voice of children within such situations that they consider trough an affirmative action the equity of this children on the prema facie of this act(metrimonial property act of 2013)
LESLIE

July 14, 2015

Assuming a woman inherited property from her parents in the course of her marriage, then the marriage goes sore and a divorce arises, shall the husband have any claim over the property inherited.
joan

September 7, 2015

We jointly bought two plots with my husband n he sold one without my consent,the other one due to circumstances was forced to transfer in my name which i footed the transfer cost.The plot bears my name but instead of my father’s name which is in my ID,he used his name,the plot does not have a tittle deed but the agreement is in his name.We have developed the plot jointly with him putting up a business premises n me the hse we live in.He neglected the fatherly responsibility to my kids n of recent he has brought in a woman to live in the bs premises as its unoccupied.i came to learn that the woman’s ID bears his name.R we safe,me n my kids?
PETER WAMBUA

October 18, 2015

I am a first year LAW student at Kenyatta University. I appreciate how you have simplified my research work on Distributive and social justice based on the Kenyan context.
JOY

May 12, 2016

My husband is in his second marriage with me .Are children from his first marriage entitled to the property we acquire today bearing in mind am the sole bread winner
Ankim

March 10, 2017

My father bought land for me as my inheritance but put both my name and my husband’s. They are two separate plots of land with two separate title deeds. My husband took both title deeds and hid them and he has refused to produce them even after being asked to do so. He had once taken a loan from a shylock without my consent using the deeds but repaid it and we think that he did the same this time. This land was acquired before the marriage and i would like to know what to do to get the titles back and also if he has any claim towards the land though he has contributed to its development.
Jomo Osoti

March 21, 2017

Must I always seek consent from my wife even where I am buy and selling land as a business? Ridiculous.
Tagaya Ogosso

March 22, 2018

This simplified version has made the act very easy to interpret.
I appreciate for making my research very elaborate and self-explanatory
Rose

April 27, 2018

I’m married to a Belgian and wants to divorce. We bought 2pcs of land together and both our names appear,he helped me build a family house. He is a not a Kenyan citizen, has he any rights over the property (land n hse)after divorce?
We both live in Belgium.
Daniel

July 24, 2018

My mother is a first wife and she pass away and we have the second wife how does the land suppose to be given
Ernesto Toto

July 30, 2018

Thanks for this. We really appreciate your time and effort. This not only helps public but also provides a new perspective to the topic.
stepheen

August 7, 2018

Heey…… My dad died leaving two widows behind….Was asking whether customary law was applicable since he died before the LSA was formed to make the new constitution or are we subject to the 2010 constitution where land whill be shared btwn children frm both widows…
Sammy

August 28, 2018

My father sold his would be share of land to his brother 28 years ago. He died 5 years later. We were left with our mum and other 2 brothers. The buyer continued paying the balances bit by bit such as Ksh 1000 ,2000,1500 Until he completed to buy in 10 year time. My mum passed on. My grandmother,mother and the buyers wife were the only witnesses. My mother,father,and grandmother have since died. The title deed is registered under my grandmothers name. My father had 2 brothers and one sister (married). The elder brother and his wide died too. The ancestral land has not been subdivided and thus our father’s share has not yet been transfered. Do we have a right to claim back our father’s share when the land is subdivided? Can our uncle(the buyer)claim to have lawfully bought our land? Are such sale agreement valid(where one claim to have sold his share for such amount of money long before the land is transfred to him and actual bounderies determined)? Can the value of the land be determined before the bounderies are determined? We want to claim our succession right. Is it viable?
Michael akabi

October 28, 2018

Hi ,how is land supporsed to be shared in polygamous family
Considering the following:
The first co wife died with the husband,left the elder son ,the last mother and his younger son.
The last mother and the elder son are both land administrators and owners.
We are left three..the elder and younger son+18 age and the last mother.advice
Michael akabi

October 28, 2018

How is land shared in polygamous family where each wife has a son.
One son’s mother passed away together with the father.

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