Your husband cannot sell house without your consent

I was married traditionally in 1983. During our marriage, we both took loans and built a house before we separated. Our children are now grown-ups and I need a share of the house so that I can live with them. My husband does not want to give me my share. What happens when I seek divorce? What if he sells the house without my knowledge?
Helene, Nairobi.

First, the house you constructed together after taking loans – separately — falls within matrimonial property. You may be separated but the house falls under matrimonial property — the Matrimonial Property Act also defines Matrimonial Property as immovable property jointly owned and acquired during the subsistence of the marriage. The property can also fall within the precincts of a matrimonial home if you all lived there as a family – before separation.

For your husband, the Constitution bars him from ‘bullying’ as Article 45(3) provides that parties to a marriage are entitled to equal rights at the time of marriage, during and at dissolution of the marriage. 
Therefore, a court may sort out the issue especially now that you want to live in the matrimonial home with the children.

In case of a divorce, since you have said that you were married under customary law, customary law principle may be considered when dividing matrimonial property. The customary law of your communities shall be taken into account as long as they are in line with values and principles of the Constitution. The law regulates the custody access and use of the matrimonial home by both spouses of a marriage irrespective of which of the spouses is the registered owner of the home. Section 12 (5) of the Matrimonial Property Act states; the matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses.

According to the Matrimonial Property Act, a spouse cannot be evicted from the matrimonial home by her partner unless by a court order. It would not be possible to sell the house without your consent as the law provides for spousal consent of both parties (husband and wife).

Section 93 of the LRA provides that subject to the law on matrimonial property, if a spouse obtains land for co-ownership, there is a presumption that the spouses shall hold the property as joint tenants unless they state otherwise.

For effective transfers of property from seller to buyer, property lawyers must fill in prescribed forms and attach sworn affidavits (of both spouses) to the original title deed and consent to transfer. Other requirements include transfer forms – in triplicate – with passport size photographs of both the buyer and seller affixed complete with signatures and attestation by the conveyancer.

Lawyers also attach land rent clearance certificates from the Ministry of Lands as proof that the seller settled the dues with the Government and land rates clearance certificate from the local authority as indication that the seller has paid up revenues with the local authorities.

Copies of national identity cards and Personal Identification Number (PIN) of both buyer and seller attested by the conveyancer as true copies of the original are also presented to registrars.

—The writer is an advocate of the High Court.