DVISON OF MATRIMONIAL PROPERTY UPON DIVORCE IN KENYA
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Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union.[1] Couples may get property in the course of their marriage either jointly or individually. Upon divorce, the properties acquired need to be divided. Division of marital property upon divorce is primarily governed by the Matrimonial Property Act, 2013. Although the law recognises both monetary and non-monetary contributions, issues on what contains a fair division arises most especially in instances where one spouse is the primary financial provider while the other contributes through unpaid domestic labour.
Understanding the legal Framework for marital property in Kenya.
- Matrimonial Property Act, 2013
The matrimonial property act offers more extensive guidelines
on the respective rights of spouses to matrimonial property. Key provisions
include
●
Definition of
matrimonial property; it defines matrimonial property as either the
matrimonial home, household goods and items in the matrimonial home or any
movable or immovable property that is jointly owned and acquired during the
marriage.[2] Any
property that a spouse acquires before the marriage is contracted, exclusively
belongs to the spouse and does not fall within the realm of the definition of
matrimonial property.
●
Equal share principle; spouses are entitled to an equal
share of matrimonial property, irrespective of whose name the property is
registered under.
● Contribution; Recognition of both financial and non-financial contributions to the acquisition and maintenance of matrimonial property.
- Constitution of Kenya 2010
Constitution of Kenya, 2010 guarantees that every person has the right to acquire and own property individually or in association with others.[3] It also provides that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of marriage.
- Marriage Act 2014
The Marriage Act 2014 provides a legal framework for Recognition of marriages and implications for property rights. It shows the types of marriages e.g. civil, customary and religious marriages and the impact they have on property rights. It allows for the creation of prenuptial and postnuptial agreements that outline property arrangements.
How courts determine
asset division
The courts use several factors to determine how property may be divided upon divorce. These factors include;
- Contribution
The Act makes an allowance for contributions in consideration of division of matrimonial property. It implies that when a spouse acquires property before or during the marriage the property does not become matrimonial property, contribution to its improvement will entitle a beneficial interest to the party that made the contribution.[4]
Contribution means monetary and non-monetary contribution and includes; domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work.[5] In the case of AWM v JGK [2021] eKLR, the High Court pronounced itself on the issue of a non-monetary contribution of a spouse. It stated that despite the fact the Respondent employed the services of house managers, the Applicant made a non-monetary contribution within the meaning of section 2 of the Act by virtue of being a mother and being part of the school and social lives of the children of the marriage. As such, she was entitled to a share of the property acquired during the subsistence of the marriage.
- Property registered in the name of one spouse.
Where matrimonial property acquired during the marriage is in the name of one spouse, the property is held in trust for the other spouse.[6]
- Jointly owned property
Where the matrimonial property is in the names of the spouses jointly, there is a rebuttable presumption that their beneficial interests are equal.[7] In the case of Karanja v Karanja, the court held out that when property is purchased jointly by both spouses and registered in the name of the husband with the wife’s approval, a resulting trust can be in her favour.[8]
- Gifts
Where a spouse gives any property to the other spouse as a
gift during thesubsistence of the marriage, there shall be a rebuttable
presumption that the property thereafter belongs absolutely to the recipient.[9]
The case of ENN v SNK
affirmed that a matter that regards the division of matrimonial property ought
to have the following proven by either of the parties:
●
The
fact of a valid, legal, regular marriage in law
●
Dissolution
of the marriage by an order of the Court;
●
That
the listed property constitutes matrimonial property; acquired and developed
during the subsistence of the marriage
● Contribution by each party to the acquisition or development. [10]
One question that comes to mind for most divorced spouses is whether they are automatically entitled to half of the matrimonial property upon divorce. The answer is a resounding no. Despite the fact that Article 45(3) of the constitution of Kenya provides equal rights of parties to the marriage upon dissolution, such right is not synonymous to a fifty-fifty or 'half-half' share of the matrimonial property.
The Court of Appeal in PNN v ZWN [2017] eKLR firmly held the view that the framers of Article 45(3) of the Constitution did not contemplate that parties to a marriage will divide matrimonial property in equal measure on a 50/50 basis. Rather notably, the Court of Appeal observed that the term 'equal rights' implies that the parties' share of property is hinged on the extent of contribution by each party.
The Supreme Court of Kenya in MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) ruled that matrimonial property should be shared based on fairness and not an automatic 50-50 split.
Conclusion
Kenyan law, including the Constitution which is the primary
law of the land, statutory guidelines and judicial precedent, outline the
intricacies revolving around the division of matrimonial property upon divorce.
It is important to take note of upcoming decisions by the Courts that aid us in
interpreting the law further to avoid error.
[1] Marriage Act, Section 3(1)
[2] Matrimonial Property Act 2013, Section 6(1)
[3] The Constitution of Kenya 2010, Article 40(1)
[4] Matrimonial Property Act 2013, Section 9
[5] Matrimonial Property Act 2013, Section 2
[6] Matrimonial Property Act 2013, Section 14(a)
[7] Matrimonial Property Act 2013, Section 14(b)
[8] Karanja v Karanja (1976) KLR.
[9] Matrimonial Property Act 2013, Section 15
[10] ENN V SNK (2020) eKLR.
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