The Kenya law on Matrimonial property has been a grey area in our legal
system. The law that applies to the division of matrimonial property in
Kenya, is section 17 of the Married Woman Property Act of 1882 of the
United Kingdom, a statute of general application in Kenya, pursuant to
section 3(1) (c) of the judicature act. The English have since repealed
the law and enacted the Matrimonial Property and Proceedings act of
1970, while we in Kenya are still using the act that was enacted in the
ancient 1800’s.
Under the current regime, if a party wants to have matrimonial
property divided, he/she makes an application vide section 17 of the
Married Woman Property Act of 1882. Section 17 provides that in any
question between husband and wife as to the title to or possession of
property either party may apply for an order to the court and the judge
may make such orders with respect to the property in dispute as he
thinks fit. Together with this provision, another source of law for the
distribution of matrimonial property are the cases that the court has
determined. The current legal regime poses a serious challenge to the
administration of justice in this area of the law. The circumstances of
life have changed greatly since 1882 and there is need for a law that
suits the current socio-economic society as it is composed.
The Matrimonial Property Bill 2012 of Kenya laws introduces the necessary
provisions that will provide solutions to the issues in matrimonial
property. It is exhaustive. It retains the purpose that necessitated the
enactment of the Married Women Property Act 1882, which was to enable
married women own property. Section 4 of the bill provides that, despite
any other written law, a married woman has the same rights as a married
man, to own property and to enter into contracts. The bill also defines
what Matrimonial property is, in section section 6. Matrimonial
property is defined to include the matrimonial home, house holds and
effects in the matrimonial home, movable and immovable property owned by
both or either spouse and acquired during the subsistence of the
marriage, or any other property acquired during the subsistence of the
marriage. Property that is acquired before the parties enter into a
marriage is not matrimonial property. The bill also provides that all
matrimonial property shall vest in the spouses in equal shares,
irrespective of the contribution made by either of the parties towards
the acquisition of the property.
The bill also recognises the existence of polygamous marriages and
provides how, in case of dissolution of the marriage, property is to be
divided. Section 8 provides that where the property was acquired by the
man and the first wife, then it shall be retained by the man and the
first wife if it was acquired before the man married another wife.
Property acquired by the man after the man marries another wife shall be
regarded as owned by the man and the other wives taking into account
any contributions made by the man and each of the wives.
The bill also provides for circumstance under which a spouse can
acquire interest in property, where the property is not matrimonial
property. Interest can be acquired if the claiming spouse made
contributions towards the improvement of the property. The beneficial
interest will be equal to the contribution made.
The principles applying to incurring of interest in property are the
same ones that will apply towards acquiring liability as well. Section
10 of the bill provides that liability incurred by a spouse before the
marriage relating to the property, shall after the marriage remain the
liability of the spouse who incurred it. If a liability is incurred on
matrimonial property during the subsistence of a marriage, then all the
spouses will be liable equally.
The Bill also recognises the application of customary laws in the
division of matrimonial property. The bill provides that the customs can
be applied as long as they do not violate the principles enshrined in
the constitution. The customary laws that will apply for the division of
the property, are the laws used for marriage.
The new bill also provides for agreements by the spouses as regards
their property, what is commonly known as prenuptial agreements. Section
13 of the Bill provides that any agreement between spouses before the
marriage, does not affect the ownership of property other than
matrimonial property to which either spouse maybe entitled, or affecting
the right of either spouse to acquire, hold or dispose of any such
property. This basically means that parties may enter into an agreement
before conducting their marriage to determine their property rights.
This applies to their liabilities as well.
The bill also makes special provisions to safeguard the spouses rights in the matrimonial property. They include:
· No property shall be alienated from either spouse during the
subsistence of the marriage, either through sale, gift,mortgage, charge
or otherwise, without consent of the other spouse.
· A spouse, either in a monogamous marriage or polygamous marriage,
the spouse has an interest in matrimonial property capable of protection
by caveat, caution or otherwise under any law in force.
· A spouse shall not during the subsistence of the marriage be
evicted from the matrimonial home by any other spouse except by the
order of a court.
The provisions in the new bill will definitely bring the division of
matrimonial property in tandem with the existing socio economic factors
in our society.