The matrimonial property dragon

Women are often left unprotected by the law when it came to property rights. In the past, women were left to swim with the sharks - in this case family - who would pounce on them in case their husband died.

They would also be left out in the cold in case their husband woke up one day and decided he did not want them anymore. They could barely own property under their own names alone, but things have changed. It is a new dawn; a new day and the rules have changed.

However, there is still a lack of awareness about the progress the law has made in protecting property rights. In fact, on marital property, when it comes to death and divorce women are often the losers, especially if they lack the necessary knowledge and means to help protect their rights.

Eve spoke to two female advocates of the high court to find out the legal rights women have on matrimonial property, in case of death, divorce, separation or even in come-we-stay relationships.

What is matrimonial property under Kenyan law?

Matrimonial property is all property acquired within the subsistence of marriage. This excludes property that the parties acquired before the marriage, but includes any development that is made on that property during the subsistence of the marriage. Inherited property is not matrimonial property. Say for instance the man bought a piece of land while he was a bachelor, that piece of land is not matrimonial property. A year later when he marries his long-term girlfriend and together they build their matrimonial home on that property, the house is a development that falls under the ambit of matrimonial property.

Is non-financial contribution considered when factoring in acquiring rights in matrimonial property? Does it give a housewife the right to claim matrimonial property?

Non-financial contribution, though recognised by the law, is difficult to compute. There is no monetary value in running a household, birthing and nurturing issues of the marriage and other such-like wifely duties. Meanwhile, the man is out there making real actual money, which he can lay a legitimate claim on should it come to the division of matrimonial property. Let women learn how to negotiate favourable terms and conditions even within marriage because marriage is a contract too. That is why people sign a marriage certificate complete with witnesses and government recognition.

What should women know about divorce and property rights?

It is important for women to know whether you are married or not because that is the genesis of division of matrimonial property. Women have been conducting themselves as wives yet they are not married. Come-we-stay or living together is not a marriage. Essentially, anything and everything they purchase together with their partner while they are merely cohabiting is not matrimonial property and it can go either way should they part ways at some point. It does not matter even if you stay for over 15 years in a come-we-stay relationship; as long as you are unable to prove that you are legally married then you cannot claim rights in matrimonial property.

What of non-financial contribution and divorce?

Nobody enters into marriage anticipating divorce. If divorce does happen to you, the property will be divided according to your contribution. The court relies on evidence adduced before it, which could be in form of receipts and funds transfers. If you do not have anything to show for it, then you have the short end of the stick and a weak case. Many women find themselves in this situation whereby they agree with their spouse that she will handle the running of their home while he handles the 'bigger' expenses like family investments and high-value property acquisitions. What this does is that it places the wife in a position where she is incurring expenses that cannot be documented. After all, we do not keep receipts for food shopping, house help salaries etc. Meanwhile, the husband's finances are unencumbered and he retains the ability to take loans or save money that can purchase properties here and there, which he will register in his own name. Sometimes, he will register it in both their names. But he retains the proof of payment. The wife has nothing to show for it and that is how she gets disenfranchised in the event of a divorce.

Are there ways that a woman can protect her rights when it comes to matrimonial property?

Ensure that as a woman you are properly married as per any of the regimes provided for by the Marriage Act. Once you are certain that you are a wife recognised by law, proceed to document all your financial contribution toward the acquisition of all matrimonial property.

Why are women often quick to put legal control of matrimonial property in the hands of their husband or partners even when they are the ones paying the loan for the said property?

What I would like women to know is that the modus operandi is outdated. We have been conditioned that wives are merely helpers to their husbands. Essentially, this makes women complacent. The moment a woman gets married, she takes the back seat in matters of investment and 'big' family decisions. Some cultures also disempower women in the sense that they are not supposed to own land. Women need to realise that traditions are inferior to the law of the land. Women can actually own property and have their names on those title documents. Seek legal counsel because each case is different and is handled based on its own individual facts and circumstances. Know that both husbands and wives have equal constitutional rights before, during and after marriage but that these right does not confer ownership of property by default.

What advice can you give to any woman who is in the process of divorce and would like to claim her rights in the matrimonial property?

Hire an advocate who specialises in family law and not a general practice advocate. He/ she will know the latest and relevant laws and precedence that will help your case and know which evidence is relevant. For example, a family lawyer will be able to advise you that even though you can only divide the matrimonial property once the divorce proceedings are over, you can still protect your right to the matrimonial property by going to court to have it declared your right in the matrimonial property. This ensures that your spouse does not sell or hide the matrimonial property while the divorce proceedings are going on, and can take anything from six months and upwards.

Why should a man put their wife's name on the title of matrimonial property?

It is only logical that if you love your children and wife and want to protect them in case of death or divorce you will put their mother's name on the title of any property purchased while married. It is common sense that if you really love someone and want to protect them from unnecessary legal cases that could drag on forever that you put their name on the title. If you die it will ensure that the extended family cannot take the property from her, and it will prevent unnecessary litigation. Also, if you separate it will still ensure that everyone leaves with something, which is only fair.

How common are prenuptial agreements?

A prenuptial agreement or prenup is a written agreement that clarifies the property and financial rights of each spouse in the event of a divorce. It is more common these days as more people are aware of the need to protect their interests in matrimonial property. It is quite common with young couples who are in their first marriage and have seen enough divorces to know it could happen to them. Also, it is common for women who are marrying a man who is divorced and has children with his ex. So, they have a prenup to protect themselves by ensuring that in case their husband dies or divorce occurs that whatever they acquire as matrimonial property during her union does not end up with first family. A prenup gives the couple control over their property so that they do not leave the division of property in the hands of the law which leaves it in the hands of the court to determine. For example, the couple can agree that if divorce happens the man will pay the school fees, leave the matrimonial home with his wife and one car, and maybe take the other car and the apartment, and the home upcountry. This enables for a diplomatic approach. So, both parties enter into marriage knowing who gets what in case the marriage comes to an end in order to protect each other and their children's interests.

How common are postnuptial agreements?

Firstly, a postnuptial agreement or postnup is a contract created by spouses after entering into a marriage that clarifies the property and financial rights of each spouse in the event of a divorce. It can also be used to clarify the responsibilities surrounding any child or children, or for other obligations for the duration of the marriage. These are usually by people in their 40s and over who find that their marriage is on the rocks. So, they come and consult about a divorce, and they discover a divorce could be detrimental to them and their lifestyle, and that it may cost them more than they are willing to lose.

A wife may realise that she and her children might lose the lifestyle that they are accustomed to if they proceed with the divorce. That she may lose the Sh100,000 she gets from her husband as spousal allowance or her children may not be able to continue going to that expensive and prestigious school. So, the couple agree to remain married but the husband gets to keep his new woman, and the wife gets to receive her allowances; the children remain in her choice school, and she gets the property under her name, all in writing and signed. Both parties win as the husband gets to keep the new woman in his life without a divorce, and the wife gets to keep the status of being married and her allowances.

Any parting advice?

Whether you get into a postnup or prenup ensure that you involve legal counsel to ensure the right legal procedure is followed and the document is valid.

Back in the day, our mothers were okay with not putting their names on title deeds even when they had saved up or helped to pay for the property bought while in marriage, and some women even today still follow this approach.

Why is it important for women to ensure that their names are on the title of property bought in a marriage?

Indeed, many of our mothers to this date do not have their names on the titles of family property, yet in many circumstances, they are the ones who identified the property, availed the deposits and even followed through with the payments. Although the law still protects the rights of a wife even if she is not named on the title of property in the Constitution of Kenya 2010, the Matrimonial Property Act 2013, the Law of Succession Act 2012, and The Land Act 2012, among others, the laws have serious gaps and are poorly enforced. As a result, one cannot understate the benefits of having women own property but also have their names appearing on legal documents. This will greatly reduce conflict incidences in case there is a dispute occasioned by a divorce proceeding or the death of one spouse. Also, women especially widows can easily have their land ruthlessly grabbed and sold as they are rendered homeless, or as squatters by fraudsters or in-laws if their name is not on the title. Having women's names on the title deed will make it more difficult to have land grabbed from them.

Can a woman use her non-financial contribution to make a claim for matrimonial property either in death or divorce?

Yes, they can. Section 2 of the Matrimonial Property Act defines contribution to mean monetary and non-monetary contribution. Non-monetary contribution includes; domestic work and the management of the matrimonial home, child care, companionship, management of family business or property and farm work. See the case of NWM V KNM (2014) eKLR and the case of AWM V JGK (2021) eKLR, and Petition No.11 of 2020 Joseph Ombogi Ogentoto vs Martha Bosibori Ogentoto.

Can a spouse sell or use matrimonial property as security for a financial loan without the consent of a spouse?

No, they cannot. Spousal consent, one of the new conditions enshrined under the Land Act, is important in the disposition of matrimonial property as it gives the transaction validity. Section 12 (1) of the Matrimonial Property Act provides that an estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses be alienated in any form whether by way of sale, lease, mortgage or otherwise. Further, Section 12 (5) of the Matrimonial Property Act provides that the matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses. Lastly, the Land Act under section 79(3) provides that a charge of matrimonial property is valid only if it is signed by all spouses or there is a document evidencing assent on the part of the other spouse.

Does a woman women have the right to inherit property from her parent or parents?

Yes, they have. The Constitution of Kenya 2010 in Article 27 recognises the right to equality and freedom from discrimination. The article specifically recognises that women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres. The article categorically bars discrimination on the basis of gender. Chapter 5 of the Constitution on Land in Article 60, provides for the elimination of gender discrimination in law, customs and practices related to land and property in land as one of the principles of land policy. Section 38 of the Law of Succession Act provides that where a deceased who dies intestate leaves behind a surviving child or children, the deceased's estate shall be equally divided among the surviving children. This division is irrespective of gender. Examples of cases include Mary Rono v Jane Rono & another (2005) eKLR the sons and In Re Estate of Lerionka Ntutu (deceased). The cases are available online for anyone who is interested in reading them.