Premium
Marriage does not always equate to common ownership of property
Before marriage, couples can agree on how to manage their property through a prenuptial agreement.
In the event of a divorce, how is the property supposed to be divided between the two parties? What informs who gets what?
Dear reader,
Divorce in Kenya is primarily a fault-based process, occurring when one or both spouses no longer find value or meaning in their marriage. Several factors are recognised by law as grounds for dissolving a marriage, although court precedents have suggested the need for reform.
These precedents argue that it should not be the Court's role to enforce an unwanted union. In Divorce Cause E1 of 2020, Justice Reuben Nyakundi redefines the Court's role in divorce matters. He states, "It is an intolerable interference by this Court to insist on sustaining a marriage that is against the rights of individuals as outlined in Articles 28 and 29 of the Constitution.
It is inappropriate to order that adults of sound mind continue to live together in a marriage that has irretrievably broken down, with no possibility of reconciliation." Divorce should be considered a means to end a marriage if the union is defined in the outlines of Section 3 of the Marriage Act. The termination of a marriage is addressed in various sections of the Act, specifically 64 to 73, which take into account the values and rituals of a particular religion or separation system.
It is essential to acknowledge that the divorce process is distinct from the legal and social aspects of determining and dividing property. The central principle at the start of every divorce process is the notion of equality within the union, which applies throughout its formation, duration, and dissolution. Article 45 of the Constitution, when read in conjunction with Article 27, Clauses (1) and (5), supports this principle. Likewise, the division of property is first grounded in this principle of equality before the specifics of acquisition are considered.
Although the Courts have the sole mandate to grant a divorce, the affected couples can also choose to end their marriage without the court’s involvement, but opt to register their decision with the Court. If there are property disputes, the separating spouse seeks guidance from the Court, if an agreement between them is difficult to achieve.
Before marriage, couples can agree on how to manage their property through a prenuptial agreement, as outlined in Section 6(3). They can also decide in advance what should happen to their property in the event of a divorce. However, this topic can be highly emotional, often leaving couples feeling upset and angry over what they consider shared property. The Matrimonial Property Act in Section 6(1) defines matrimonial property as that which includes the matrimonial home or homes, household goods and effects within those homes, as well as any other immovable and movable property that is jointly owned and acquired during the marriage.
In a marriage, property can take several forms: property that is registered solely in the name of one spouse, whether the husband or the wife; property that both spouses jointly own; property that either spouse earns while working with others, not necessarily including their spouse; property that is held in trust for other beneficiaries. All or any of these types of property can be considered matrimonial property, as defined in Section 6(1). Suppose the couple cannot reach an agreement on how to divide their matrimonial property, even after mediation attempts? In that case, they may seek a decision from the Court, as outlined in Section 17 of the Matrimonial Property Act.
In the case of Joseph Ombogi Ogentoto v. Martha Bosibori Ogentoto, the Supreme Court affirmed the principle of contribution concerning matrimonial property. The Court clarified that marriage does not automatically equate to common ownership or co-ownership of property. It also warned against the simplistic notion of marriage equality, which implies a 50 per cent division of property. The Court emphasized the importance of understanding the concept of contribution. The interpretation and application of this concept has a higher probability of an individual exiting the marriage with the wealth they have acquired through their efforts. The Supreme Court's decision is based on Section 7 of the Matrimonial Property Act, which recognizes contributions as either monetary or non-monetary in nature.
Furthermore, Section 9 recognizes indirect contributions such as domestic work, childcare, farm work, companionship, and property improvement. However, this part of the law does not provide a specific formula for determining what qualifies as companionship, childcare, or domestic work.
Typically, monetary contributions can be documented through receipts, invoices, and quotations. According to the information provided, there is a presumption that a property registered in one spouse's name is held in trust for the benefit of the other spouse. In contrast, property that is jointly owned is assumed to be equally owned by both parties.
