What married women should know about land ownership

Property has no gender. Historical records, however, reveal entrenched gender biases in property ownership, heavily favouring men and marginalising women’s rights and contributions. Over time, various movements and legal reforms have sought to address these inequalities.

Knowledge gaps, deep-rooted beliefs and societal attitudes continue to undermine women’s property rights and overshadow legal protections, making it difficult for women to effectively enforce their legal rights.

Generations of women continue to experience and express limited access to and control over property. Married women can therefore be empowered to assert and protect their legal rights to property by being informed about how existing laws relate to property rights. The nuggets of information summarised below are intended to provide a level of understanding that will enable women to confidently engage in property transactions after marriage and to ensure an equitable distribution of assets in the unfortunate event of divorce:

1. Registering Solely Owned Property as Jointly Owned

There is a legal procedure for a non-owner spouse to acquire joint ownership of property. Pursuant to Regulation 23(1) of the Land Registration (General) Regulations, 2017 a registered proprietor can apply to the Registrar to include their spouse’s name in the register. The sole registered owner must sign a transfer instrument adding the other spouse as a joint owner, which is then registered at the Land Registry. This would effectively confer ownership.

Additionally, a spouse may request inclusion in the register under Regulation 23(2). However, this entry does not confer ownership status but rather acknowledges the spouse’s interest in the property.

2. Joint Tenancy versus tenancy in common

Choosing the right co-ownership structure is important as it determines the rights, responsibilities and inheritance of property. In joint tenancy, the right of survivorship applies, meaning the surviving joint owners automatically inherit a deceased owner’s share without the need for probate proceedings provided the surviving joint owners formally request the removal of the deceased’s name from the land register. It is also important to note that even when property is acquired in joint names, the presumption of equal beneficial interest can be rebutted.

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In common tenancy, each owner holds a separate and distinct share of the property.

3. Prenuptial agreements

Kenyan law recognizes prenuptial agreements under the Matrimonial Property Act, of 2013. These agreements allow couples to determine how their property will be owned, managed, and divided in the event of a divorce or separation. For a prenup to be enforceable, it must meet all the requirements of a valid contract. Prenuptial agreements can be a useful legal tool for women to predefine and protect their property rights.

4. Understanding spousal consent in property rights

The Matrimonial Property Act, 2013 requires that a matrimonial home cannot be charged or leased without the written and informed consent of both spouses. Additionally, any interest in any matrimonial property cannot be alienated during the subsistence of a monogamous marriage without the consent of both spouses.

When applied appropriately, spousal consent can safeguard the interests of a spouse ensuring transparency and mutual consent in managing the property.

5. Entitlement to a 50-50 distribution of matrimonial property

The Supreme Court has upheld the requirement that proof of direct or indirect contribution be made before a spouse is granted a share in matrimonial property. Taking this into consideration, divorce proceedings can be viewed as an audit, which means that to ensure a smooth process, one would need to document every contribution they have made.

6. Purchasing freehold property with a non-citizen spouse

Freehold land is preferred for its absolute ownership, but Kenyan law prohibits non-citizens from owning freehold land, limiting them to leasehold tenure not exceeding 99 years. If a non-citizen spouse is involved in acquiring freehold property, the applicable law would need to balance the right of the Kenyan citizen to own freehold property with the restriction on the non-citizen who is limited to owning leasehold property. Ideally, the freehold interest may need to be converted to leasehold to comply with the law.

The writer is a partner at Cliffe Dekker Hofmeyr (CDH) Kenya.