Divorce is a legally protected process, governed by the Matrimonial Property Act 2013, the Marriage Act 2014, and the Children Act 2001. Contrary to popular belief, divorce doesn’t automatically lead to one spouse losing their property to the other or one spouse benefiting highly than the other. The mentioned legislation is there to ensure that the process is done fairly and transparently. This article explains the various rights spouses have during divorce.
Right to Matrimonial property
Matrimonial property includes matrimonial homes, household goods and effects and any other immovable or movable property jointly owned and acquired by a couple during the subsistence of marriage. Ownership of matrimonial property vests in the spouses according to their contribution towards its acquisition. Nonetheless, a spouse gains interest in the property through contributions towards the improvement of the property. As such, the spouse who contributes usually acquires a beneficial interest in the property equal to the contribution made. Therefore, each spouse has a right to matrimonial property based on their contribution towards its acquisition or improvement and their beneficial interests will be measured based on their contribution.
Right to maintenance
Spousal maintenance, also known as alimony is the financial support provided by one spouse to the other. A court may order a spouse to pay maintenance to their former spouse if the spouse requesting support is in genuine need of financial support. The court usually assesses the spouse’s ability to pay the maintenance. The court considers the income and earnings of both spouses, their standard of living during the marriage, the duration of the marriage, contributions to the marriage, and financial and property holdings.
Custody and child support
Each spouse is usually given responsibility towards their child or children. Each of them should fulfill their obligations towards the child/children. Child custody and child support arrangements are usually done through a court process to safeguard the child/children’s wellbeing. As such, any spouse who doesn’t obey the court orders usually faces consequences upon application by the other spouse.
Right to personal property
Marriage does not affect the ownership of property other than matrimonial property. Either spouse may be entitled to property acquired before or during marriage in which the other spouse did not take part in making any contributions. As such, the other spouse not entitled to the property does not affect the right of the spouse owing the property to acquire, hold, or dispose of any such property. The spouse owning the property has the right to treat it as his/her personal property and, thus, do as they please with it without requiring the other spouse’s consent.
Protection from domestic violence
Divorce comes with emotional and psychological trauma that often creates resentment between spouses, thus, causing violence and heavy enmity. As such, cases of domestic violence during divorce are very common. Any spouse who feels that their safety is threatened by the other spouse has the right to obtain a court order restraining the spouse likely to cause harm from engaging in such acts.
Right to legal representation
Both spouses have the right to hire an advocate to represent them during the divorce proceedings. Having legal representation is essential to ensure proper and fair distribution of property and responsibilities.
Conclusion
Divorcees have rights that are put in place to ensure fairness and equity. Each case is assessed individually since grounds for divorce may differ and matrimonial property differ in value. These rights prioritize the well-being of children and the financial security of the spouses to ensure fair and just outcomes.
For more insights pertaining to this matter, you can reach the writer at nyala@mmsadvocates.co.ke . You can also contact us at MMS Advocates, Lower Duplex Apartments, Lower Hill Road, or email us at info@mmsadvocates.co.ke