Nightmare of dividing marital property

By Harold Ayodo

Natasha Oluoch* lived with her husband in Nairobi’s leafy surburbs of Lavington Green for over 20 years before she filed a divorce for alleged infidelity. In the early years of their marriage, she had resolved to resign from her well paying job at a blue chip international firm in Nairobi so she could take care of their four children and investments in real estate.

Deep West Pub, which is currently in dispute by the co-owners, Joyce Akinyi and Antony Chinedu. Photo: Martin Mukangu/Standard

"I played the honest wife during our 20 years of marriage until a woman named Sylvia turned up at my house with three children claiming they were my husband’s," Natasha recalls.

DNA tests on the children confirmed they were indeed her husband’s, giving her grounds for divorce due to infidelity. Her worst fear today remains what the court will rule regarding the division of their investments in real estate countrywide whose worth is estimated at Sh1.5 billion.

"My problem is that we acquired all the property after our wedding but it is all registered in his name," says Natasha. The couple owns large tracts of land and rental houses in Karen, Runda, Kitisuru in Nairobi, and Milimani and the Riat Hills in Kisumu among other towns.

Women disinherited

Like Natasha, many women have over the years been disinherited after divorcing or

Section of a bungalow at Nyali in North Coast, Mombasa. The property was in dispute following a divorce case between tycoon Mohamed Bahkresa and his estranged wife. Photo: Maarufu Mohammed

separating from their husbands. The biggest contributor to this problem is the lack of written laws on the division of matrimonial property.

Occasionally, courts have taken into judicial consideration that most African communities traditionally held that the matrimonial home belonged to the husband. Hence, it is believed that in the event of a divorce, the wife can carry away with her only the property that she acquired individually.

Several women across Africa are denied their rights to property. In some countries, they are required to seek the authority of their husbands in order to acquire titles in their names.

The Law Society of Kenya Vice Chairman, James Mwamu, says division of nuptial property is a nightmare couples undergoing divorce are yet to awake from. "Sadly, making judgment on how it will be divided is difficult because there are no written laws," he says. "Courts are forced to rely on English precedents or previous judgements."

Tension between common law and customary concepts of ownership exacerbate the problem. The Succession Act is also repressive because it has a provision which states that a woman will forfeit her interest in the estate of her husband if she re-marries but it does not apply in reverse.

Properties in dispute

Mary, the estranged wife of ECK Chairman, Samuel Kivuitu. After the couple divorced, the court ruled equal ownership to their property. Photo: courtesy

There are several legal hitches in cases where spouses buy properties as a family venture with the intention of holding it in equal shares but register it in the husband’s name.

"In the event of a divorce, the couple is usually surprised to discover that their business may go to the rocks after the dissolution," Mwamu says.

Division of marital property has become the subject of legal proceedings and has impacted negatively on the property rights of members of a family. FIDA lawyer Judith Okal says women in polygamous marriages get raw deals when property acquired in the course of the marriage is divided.

"We have handled several cases where the senior most wife insists on the lion’s share of the property upon the death of the husband, arguing that she was married first," says Okal.

The emergence of learned women who earn more than their husbands and use their earnings to acquire wealth and improve existing family property complicates the matter. "We need laws that allow couples to walk away with the property they inherited or acquired individually before their civil unions," argues Mwamu.

The Court of Appeal and High Court have delivered landmark rulings on division of marital property, while Parliament is yet to pass laws on the matter 45 years after independence.

Absence of written law

Some precedents show that the status of marriage does not entitle the wife to a share in the property registered in the name of the husband.

"The absence of a written law on division of property after marriage has left several couples poorer than they were before the unions," Okal says.

And according to courts, performance of domestic duties does not change ownership of property acquired by the husband even if a wife is economical in her spending at home.

"Parliament should pass the Marriage Bill 2007 into law to streamline wars over property when marriages end," says Okal. She argues that such a statute will not only benefit married women but the men as well.

"There are cases where husbands end up with much lower than they deserve," says Okal.

Precedents show that property acquired before wedlock ceases to belong to a spouse after it has been developed during marriage. Legal experts, however, argue that husbands who do not intend to share matrimonial property equally with their estranged wives can contest this in court.

"It is usually unfair that a wife who may have wholly bought property from her savings gets nothing in the end following legal technicalities," Okal says.

During a landmark case he presided over, Retired Appellate Judge Justice Richard Kwach said the contribution of wives in acquiring matrimonial property should be looked at keenly. "The contribution of a Kenyan wife more often takes the form of back-up service on the domestic front rather than direct financial contribution," Justice Kwach said.

Mwamu concurs with Justice Kwach arguing that most marriages are built on a ‘gentleman’s’ agreement — especially on roles which cannot be quantified. "There are marriages where couples agree that the wife plays domestic roles as the husband fends at work," he says.

Okal concurs. "Husbands would not acquire as much property if wives did not ensure there was a peaceful environment at home."

50-50 ruling

The Court of Appeal has recently ruled that matrimonial property is shared on a 50-50 basis even when the wife never made any financial contribution in acquiring it. Property lawyers concur that planning of family finances and regular contributions in the acquisition of property could avert prolonged legal battles over divisions. Due diligence on the registration status of family property could help secure a spouse’s share in cases of unexpected eventualities, without protracted legal battles.

Couples who acquire property after marriage and register the same as joint property are more likely to walk away with equal shares when the marriage breaks.

"There is also concern over the inheritance rights of the children that are rarely taken into consideration during the scramble for property," says Mwamu. He adds that the welfare of the children is provided for in the Children’s Act of 2001 but there is no legislation for them regarding property on divorce of their parents.