Property can't be shared until couples divorce, declares court

The party laying claim on a property must prove marriage dissolution. [iStockphoto]

Distribution of matrimonial property can only be done when a couple divorces, the High Court has ruled.

Justice Grace Nzioko said a party seeking to lay claim on the property must attach “a decree absolute” as evidence of the dissolution of marriage.

She noted that Section 6(3) of the Matrimonial Property Act, 2013, states that the property should be shared between spouses “if they divorced or their marriage is otherwise dissolved”.

“It is clear that the distribution of matrimonial property cannot be dealt with where the marriage between the parties subsists as herein as such, the matter herein was filed pre-mature,” said the judge last week in a ruling delivered on an application by a woman.

In her petition, the teacher wanted the court to declare the property registered in the name of the man as jointly owned and held in trust for her.

The property includes a residential home in Naivasha, two pieces of land in Ol Kalou and Kijabe, a motor vehicle, furniture, fittings and other household goods.

She wanted the court to declare that she is entitled to 50 per cent of the property. The woman sought to have the division done within 90 days, and her share transferred in 60 days.

She also wanted the court to issue orders barring the man from evicting her from their matrimonial home.

In her affidavit, the woman told the court that a divorce case was ongoing in a Naivasha court.

The man, in his response, termed the case seeking the distribution of property premature.

The judge agreed, noting that the proceedings in the divorce dispute had not been made available. 

“Therefore, I disallow the originating summons because it is not properly before the court or it is premature. It is so ordered and further that each party do meet its respective costs as both parties acquiesced in this litigation,” ruled Nzioka.