Does his new wife get equal rights to our property?

What happens if my husband takes on a second wife yet we own property jointly? Does it mean she gets a share of my property?

Disputes over division of matrimonial property tore apart polygamous families after the death of a spouse or divorce before enactment of the Matrimonial Property Act, 2013.

Since the enactment of the Matrimonial Property Act seven years ago, the law defined matrimonial property to mean matrimonial home(s). It also means household goods in the matrimonial home(s) movable and immovable property jointly owned and acquired during the subsistence of the marriage.

Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between them if they divorce or their marriage is dissolved.

The law also provides for property rights in polygamous marriages which for ages ended in unending legal disputes.

Currently, if spouses in a polygamous marriage divorce or the marriage is dissolved, matrimonial property acquired by the husband and his first wife are retained equally by both of them.

However, matrimonial property acquired by the man after marrying another wife shall be legally regarded as owned by him and the wives – taking into account contributions made by the husband and each wife.

As a wife who does not want to be embroiled in unending battles over ownership of matrimonial property, having a written agreement is the way to go. Legally, where it is clear that there exists a written agreement of the spouses that a wife shall have her matrimonial property with the husband separate from that of other wives. In such a case, such a wife shall own that matrimonial property equally with the husband without the other wife or wives.

You may also protect yourself by entering into a prenuptial agreement before getting married since the law in Kenya today allows polygamy. The pre-nups (prenuptial agreements) allows couples to enter into an agreement before their marriage to determine their property rights.

Currently, brides-to-be who have invested in property through their chama or Sacco contributions are increasingly protecting themselves by seeking legal advice before saying ‘I Do’. The enlightened women want to know whether they can continue owning their investments separately from what they will invest together with the husband after marriage. Majority of such women argue that their precautions are guided by the increasing cases of divorce, property tussles by secret lovers or in-laws after the death of a spouse or co-wives.

The pre-nups are however not cast in stone as a spouse may apply to the Court to revoke the agreement, which may happen determined that the agreement was influenced by fraud, coercion or is unjust.

- Harold Ayodo is an Advocate of the High Court of Kenya