Marriage is a union that binds two individuals into one. Or as they say, he whom God has joined together, let no man separate. However, life does get complicated, and unfortunately people get divorced. When it comes to dividing property in the event of a divorce, matters can become complex and messy.
This is where the Kenyan Matrimonial Property Act of 2013 comes in. It aims to bring clarity to the division of matrimonial property. The Act aims to clarify issues that were previously subject to varying interpretations by the courts.
Defining Matrimonial property
In the past, Kenyan courts had diverse views on what constituted matrimonial property. The 2013 Act now provides a clear definition. Such property includes the matrimonial home, household goods, and any other property acquired during the marriage.
It also states that property held in trust under customary law does not form part of matrimonial property. This means that if either partner is holding on to land belonging to their family as a trustee, then it doesn’t qualify to be matrimonial property. And hence, it can’t be divided.
Equal Rights, Not necessarily Equal shares
Far from what the West does, our laws in Kenya are much fairer to men. And while the law grants equal rights to both parties, this doesn’t necessarily mean equal sharing. This is in article 45(3) of our Kenyan Constitution, which grants equal rights after marriage.
However, it does not mandate a 50:50 division of property. The act clarifies that each spouse has an equal right to own property and engage in legal transactions. But it doesn’t dictate an equal split of assets in the event of divorce.
Pre-nuptial agreements
The Act recognizes prenuptial agreements. Which is simply a document outlining how property is to be shared in the event of death or divorce.This allows couples to define jointly owned property and what doesn’t fall under matrimonial property. Without such agreements, the law will presume certain assets. This shows the need for clear communication and legal documentation in marital financial planning.
Contribution Matters
During divorce proceedings, the Act guides the division of property based on each spouse’s contribution. This includes both monetary and non-monetary contributions. The Act acknowledges the diverse ways individuals contribute to a marriage. Contributions include child care, companionship, and the management of family businesses or property.
presumptions and burden of proof
Property acquired during marriage is presumed to be jointly owned unless proven otherwise. For property registered in one spouse’s name, the law presumes it is held in trust for the other. In cases of jointly owned property, each party must prove their contribution to it. Be it monetary or non-monetary, during the division process.
Property rights declared before divorce
The Act allows individuals to seek a declaration of rights over contested property even before the dissolution of marriage. This provision can be useful in situations where disputes arise over ownership. This provision serves to prevent unjust actions, such as wrongful attachment by auctioneers.
Applicability to different marriages
The principles outlined in the Act apply universally, including to polygamous marriages. Each wife is presumed to own her property, co-owning it with the husband unless proven otherwise. Notably, the Act doesn’t cover marriages under Islamic law. But it is applicable to those under customary law, aligning with the Constitution of Kenya.
Conclusion
In essence, the Matrimonial Property Act of 2013 brings clarity and fairness to the division of assets during divorce in Kenya. Offering a legal framework that considers the diverse contributions of spouses to the marriage. It emphasizes the importance of communication, documentation, and legal agreements in navigating the complexities of matrimonial property rights.
| Key Aspect | Summary |
|---|---|
| Definition of Matrimonial Property | Includes matrimonial home, household goods, and property acquired during marriage. Property held in trust under customary law is excluded. |
| Equal Rights, Not Equal Shares | Both spouses have equal rights, but property division is not automatically 50:50. |
| Pre-nuptial Agreements | Recognized by law to outline property division in case of divorce or death. |
| Contribution Matters | Both monetary and non-monetary contributions (e.g., childcare, companionship) count during property division. |
| Presumptions & Burden of Proof | Property acquired during marriage is presumed jointly owned; spouses must prove their contribution. |
| Declaration Before Divorce | Spouses can seek property rights clarification even before divorce to prevent disputes. |
| Applicability | Applies to civil, Christian, Hindu, customary, and polygamous marriages (but excludes Islamic marriages). |
Frequently asked questions
A wife is entitled to a share of matrimonial property based on her monetary and non-monetary contributions during the marriage.
There is no Matrimonial Property Act 2025; the governing law in Kenya is the Matrimonial Property Act No. 49 of 2013.
Matrimonial property refers to assets acquired during marriage, including the matrimonial home, household goods, and jointly acquired property.
It is a Kenyan law that defines matrimonial property and sets rules for its division upon divorce.
That is known as spousal maintenance or alimony.
The money paid is called alimony or spousal maintenance.
