Divorce is the legal separation of a man and a wife by the judgement of a court.[i] After divorce, matrimonial property has to be shared. During the subsistence of a marriage, the ownership of matrimonial property vests in the spouses according to their contribution towards its acquisition.[ii]
The Matrimonial Property Act of 2013 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.[iii] It excludes property that is held in trust or subject to pre-nuptial agreements by the spouses.[iv]
The division of matrimonial property in Kenya is guided by statutes as well as case law. To begin with, the Constitution of Kenya guarantees that parties to a marriage are entitled to equal rights even at the dissolution of the marriage.[v] More importantly, the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.[vi] This leaves it for the court to interpret what equal rights in the distribution of matrimonial property entails.
The Matrimonial Property Act of 2013 provides for the rights and responsibilities of the spouses in relation to matrimonial property and for connected purposes.[vii] This extends to the rights of the parties at the time of dissolution of the marriage. 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 and the property does not become matrimonial property, contribution to its improvement will entitle a beneficial interest to the party that made the contribution.[viii]
There is a rebuttable presumption that even where matrimonial property acquired during the marriage is in the name of one spouse, the property is held in trust for the other spouse.[ix] Where the matrimonial property is in the names of the spouses jointly, there is a rebuttable presumption that their beneficial interests are equal.[x]
There has been different judicial approaches towards the division of matrimonial property, some being contradictory approaches. For example, 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.[xi] On the contrary, the court in the case of Essa v Essa denied its power to pass title from one spouse to another.[xii]
A more recent decision of the court in 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; and
- Contribution by each party to the acquisition or development.[xiii]
In order to protect the rights of the parties to a marriage in the event of a divorce, the division of matrimonial property in Kenya thus involves various considerations by a court of law.
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[i] Black’s Law Dictionary, 2nd ed.
[ii] Section 7, Matrimonial Property Act (Act No.49 of 2013).
[iii] Section 6 (1), Matrimonial Property Act (Act No.49 of 2013).
[iv] Section 6 (2), Matrimonial Property Act (Act No.49 of 2013).
[v] Article 45 (3), Constitution of Kenya (2010).
[vi] Article 27 (1), Constitution of Kenya (2010).
[vii] Preamble, Matrimonial Property Act (Act No.49 of 2013).
[viii] Section 9, Matrimonial Property Act (Act No.49 of 2013).
[ix] Section 14 (a), Matrimonial Property Act (Act No.49 of 2013).
[x] Section 14 (b), Matrimonial Property Act (Act No.49 of 2013).
[xi] Karanja v Karanja (1976) KLR.
[xii] Essa v Essa (1995) LLR 384 CAK.
[xiii] ENN V SNK (2020) eKLR.