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FAQ Divorce and Children’s Law

Matrimonial Property Law in Kenya

By 10 Oct 2021No Comments

FAQ’s

Matrimonial Property Law in Kenya

Is my spouse entitled to half of my assets/half my house on divorce?

Not necessarily. Kenyan Law provides that separately owned assets remain the assets of the sole owner subject to commingling that may cause your spouse to acquire an interest in your separate property. Thus your spouse may acquire an interest in previously separately owned property and in such a case, your spouse may not necessarily be entitled to half, but to a percentage equivalent to what your spouse contributed to its improvement, which may or may not be 50% of its value. On the other hand, your house may become the matrimonial home after marriage. In such instances the rules under the Matrimonial Property Act come into play.

What happens to property owned before marriage?

Separately owned property remains so unless your spouse improves it in which case they may acquire an interest in said separate property. Spouses can enter a prenuptial agreement to delineate separately owned property from matrimonial property. Thus during a matrimonial property cause, you as the owner of what you deem your separate property often fight to prove that no improvements or commingling has happened to grant your spouse an interest in said separate property.

Do assets I acquire in my name during marriage become matrimonial property?

The Matrimonial Property Act preserves the legal principle of separation of property acquired before or after marriage subject to rules on commingling or improvement by your spouse. Thus simply put, if you keep your separately owned property as truly separate from jointly owned property, then you retain your interest 100% in said assets.

Can business assets be included as matrimonial property?

Yes, it is possible for your spouse to acquire an interest in your business entitling them to a share.

What shall be considered matrimonial assets and non-matrimonial assets?

Matrimonial assets are defined to include the family home and goods therein and assets acquired jointly during the marriage. On the other hand, non-matrimonial assets are those acquired separately by you and your spouse before or during the marriage. It is important to note that your spouse may additionally, acquire a beneficial interest in separately owned property based on contribution e.g. through improving that asset or through commingling.

What do Kenyan Courts consider when dividing assets upon divorce?

Courts consider various factors including:

  1. Financial contribution towards acquisition or improvement of assets
  2. Non-financial contribution towards acquisition or improvement of assets
  3. Welfare of minor children (e.g. impact of order on matrimonial home on rights of children)
  4. Customary Law as pertains to customary marriages
  5. Livelihood of spouses

Is my spouse entitled to half of our matrimonial property on divorce?

Not necessarily. There have been many court decisions where the courts have interpreted that reference to equal rights under marriage under Article 45 of the Kenyan Constitution is not referring to division of marital assets, rather equal consideration and treatment of both men and women before the law as relates to marriages (e.g. women should not lose their rights to property by virtue of marriage etc.) Thus the Kenyan law provides that your spouse is entitled to an equivalent percentage of the contribution made towards acquiring the asset (which may or may not be half of the property).

Will I have to sell my house to grant my spouse a share in our matrimonial home?

It is open to parties to sell to each other their share in the marital home such that the remaining spouse can remain the sole owner of the marital home. Other times if there are minor children living in the home, the court may direct parties to come to an arrangement that does not leave the children at risk of being homeless. The court will thus consider which parent has primary custody.

Will I lose my marital home if I did not contribute money towards its purchase?

Not necessarily. The court is bound to consider both financial and non- financial contribution towards acquisition of the family home. Thus for instance stay at home spouses or spouses who work but do not appear on the title documents for the home can fall back on the non-financial contribution to stake their claim to matrimonial property. It must be clear to the court the actual non-financial contribution that you wish to rely on as the basis for your claim in any matrimonial property cause.

I bought our marital home using my own money in full, is my spouse entitled to a share of it?

Depending on the circumstances of each case, your spouse can acquire an interest in the home and may be entitled to a share of the matrimonial home (as designated under law) provided your spouse has made a contribution to its acquisition whether financial or non-financial.

Can I be evicted by my spouse from my marital home without a court order?

No. Under matrimonial law your spouse is prohibited from evicting you, unless your spouse has obtained a court order to do so. Thus you have a right to reside in your matrimonial home.

 

The provision of general advice herein does not constitute an advocate-client relationship with any reader. All information, content, and material in this article are for general informational purposes only. Readers of this article should get in touch with us to obtain advice with respect to any particular legal matter.

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