No spouse enjoys the liberty to unlawfully deprive the other of their interest or occupation of the matrimonial home.
Hi Eric
We disagreed with my wife of 10 years. Now she wants to kick me out of our matrimonial home. Where do I start legally?
Dear reader,
Marriage, as explained in Article 45, Clause 3 of the Constitution and Section 3 of the Marriage Act of 2014, relies on seven key principles: Voluntariness: Adults should enter marriage freely, without pressure.
Equality: those who are of legal age are equal, with each partner contributing emotionally, socially, and economically. Commitment: marriage means committing to meet each other's biological, emotional, mental, and physical needs. Rights: The Marriage Act recognises that these needs are rights, especially when considering separation or divorce. Permanence: While marriage aims for lasting commitment, it only works if the earlier principles are clearly understood and respected.
Conflict resolution: conflicts may happen, so there should be ways to resolve them. Opposite sex requirement: all partners in a marriage, including polygamous ones, must be of opposite sexes. These principles help ensure a strong and fair marriage.
The right to own property in Kenya is constitutionally protected and subject to specific legal provisions, as outlined in Article 40(1)(a) and (b) of the Constitution. This means that no spouse can legally undermine the property rights of the other.
According to the Matrimonial Property Act, Section 6, two key legal principles should ensure fairness for families, including those who decide to separate. In monogamous marriages, spouses typically share ownership of matrimonial property equally, on a 50 per cent basis.
However, it is also possible for an individual to own property independently of their spouse. When disputes arise regarding property claims, it is the court's responsibility to determine whether the contributions made by the non-owning partner deserve any compensation.
The matrimonial home is classified as part of matrimonial property, as defined in Section 2 of the Matrimonial Property Act. This term refers to any property owned or leased by one or both spouses that is occupied or used by them as their family home, including any additional attached property. Section 7 of the Act outlines the ownership of matrimonial property, stating that ownership is determined by the contributions made by either spouse towards its acquisition.
In the event of divorce or the dissolution of marriage, this property will be divided between the spouses. Contributions can include domestic work, management of the matrimonial home, childcare, companionship, oversight of family businesses or property, and agricultural work. These contributions will be a key factor in determining the division of property, especially if the spouses did not enter into a prenuptial agreement, as mentioned in Section 6(3) of the Act.
Near-irreparable differences or circumstances may arise, potentially leading to the threat of eviction from the matrimonial home. Such eviction threats often stem from the confidence associated with absolute ownership. However, there is still an opportunity to prevent the couple from transitioning into a full separation process. They could consider engaging a mediator or counsellor to initiate a marriage-saving process.
In some cases, families—especially those rooted in religious traditions or within the African cultural framework—have built-in conflict resolution mechanisms that can be utilised. This approach is supported by legal and social justifications found in Article 159, Clause 2, paragraph C, in conjunction with Article 2, Clause 4, of the Constitution.
Nonetheless, Section 12(3) of the Act provides that a spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.
The court order may be given in circumstances where there are instances of abuse or domestic violence between the spouses, if it is in the best interest of the children in accordance with Article 53(2) of the Constitution that one spouse be evicted and if there are ongoing divorce or separation proceedings on the grounds outlined in Section 65 of the Marriage Act.
Moreover, eviction can also occur; on the sale of any estate or interest in the matrimonial home in execution of a decree, it may be done by a trustee in bankruptcy or by a mortgagee in exercise of a power of sale or other remedy given under any law as provided for under Section 12(4) of the Act. Differences and conflicts aside, no spouse enjoys the liberty to unlawfully deprive the other of their interest or occupation of the matrimonial home, except in accordance with due process of law.
If reconciliation fails, two petitions must be submitted to the family court. The first petition will address divorce, determining the status and future of the marriage according to the provisions outlined in Sections 66-71. The second petition will focus on the division and distribution of matrimonial property. Courts have established precedents in this area, and it is expected that Article 27 will serve as the foundation for both petitions, ensuring that both the petitioner and respondent are treated equally before the law.
Additionally, Article 28, which safeguards inherent human dignity, will be considered, especially when the court decides issues related to access, use, and control of the matrimonial home, in alignment with Article 29 regarding personal security.
