Given the Supreme Court decision in the matter of JOO and MBO[1] on the mode of distribution of property acquired during the subsistence of a marriage, the subject of matrimonial property has become a trending topic of discussion. It is therefore essential to set the record straight on what the law provides on this issue.

Matrimonial property is defined in section 6 of the Matrimonial Property Act[2] (the “Act”) as the matrimonial home (this is the property that is owned or leased by one or both spouses and occupied and utilized by the spouses as the family home), the household goods and effects in the matrimonial home; or any other immovable or movable property jointly owned and acquired during the subsistence of the marriage.

According to Section 7 of the Act, ownership in this property vests in the spouses according to the contribution of either spouse towards its acquisition and it shall be divided on the dissolution of the marriage. A spouse can contribute to the matrimonial property in two ways:

1. monetary contribution – this involves the direct use of funds to purchase the property or make improvements to it.
2. non-monetary contribution – this involves other activities such as:
   
   1. domestic work and management of the matrimonial home;
   2. child care;
   3. companionship;
   4. management of the family business or property; and
   5. farm work.

Any property that is acquired by either spouse prior to the marriage shall remain separate. However, the other spouse may acquire beneficial interest in the property through contributing towards the improvement of the same. On the other hand, for any properties that are acquired during the marriage that are registered in the name of one spouse, there is an assumption rebuttable presumption that the said property is held in trust for the other spouse per Section 14 of the Act. This assumption can be contested where evidence is presented before a court to prove otherwise. It is for this reason that spousal consent is required before any married person’s property is transferred by sale or gift, leased out or charged in favour of a lender. This consent would generally provide that the spouse;

1. is aware of the existent of the said property;
2. is aware that the property is registered in the name of their spouse;
3. is aware of the transaction that is to take place and that they have consented the same; and
4. has obtained independent legal advice and they understand the implication of issuing their consent per the terms of this Act.

Notwithstanding the above, spouses may also opt to enter into a premarital agreement to help in determining their property rights. Such agreements are valid and binding however a court may set this aside on grounds of coercion, fraud or the terms are strikingly unjust further to Section 6(4) of the Act. As such, we strongly recommend that prior to entering into such an agreement, parties should engage advocates to provide independent legal advice to ensure that on the dissolution of the marriage the courts can uphold and enforce the terms as dictated in the agreement. These agreements are an effective tool in wealth management so long as the terms are drafted fairly and there is full transparency from the parties.

By virtue of the Marriage Act[3], where a man elects to marry more than one wife, the unions are registrable where the marriages were celebrated under customary law to the extent that this law is consistent with the Constitution of Kenya and does not fall within the definition of a prohibited marriage. Prohibited marriages include unions between a person and:

1. their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew;
2. the grandparent, parent, child or grandchild of that person’s spouse or former spouse
3. the grandparent, parent, child or grandchild of that person’s former spouse
4. a person whom that person has adopted or by whom that person has been adopted; or
5. any other person where such marriages is prohibited under customary law.[4]

As such, the Act also provides for the property rights in cases of polygamous marriages under Section 8 where generally, the principles provided above still apply. The matrimonial property acquired by the man and his first wife shall be retained equally between the two only if the property was acquired before the man married another wife. Where the man provides matrimonial property after marrying a second wife, the property is regarded as owned by the man and the current wives taking in account any contributions made by the man and the wives. Nevertheless, where the parties agree, a wife can own matrimonial property with the man excluding the other wives. For marriages governed by Islamic law, all matters relating to matrimonial property are governed by the provisions of Islamic law.

Although it is often thought that the importance of distinguishing matrimonial property is only significant at the point of the unfortunate dissolution of the marriage, this is not entirely accurate. This can also come into play in the following situations:

1. determining when a spousal consent is required when a spouse is transacting with their property;
2. securing a spouse’s right from being evicted from the matrimonial home without obtaining a valid court order as per Section 12 (4) of the Act;
3. determining which property can be attached in bankruptcy proceedings against a spouse etc.

In conclusion, it is essential for individuals both entering marriages and already in marriages to understand their interest in property that is acquired either jointly or separately in the subsistence of the marriage so that they are aware of the rights and liabilities that may attach.