Hi Wakili, is there a formula for dividing marital property in Kenya? And are prenuptial agreements standard here?
Inequalities and inequities in marriage are systemic. These are often wired in culture, gender insensitive laws, infrastructural set-ups and organisational practices that remain primarily patriarchal, but with subtle and sometimes covert terms.
The presumption of a marital property sharing formula is at Article 45 of the Constitution, which provides for spouses’ equal rights at the time of marriage, during its lifespan and at dissolution.
Section 6 (1) of the Matrimonial Property Act defines matrimonial property to be matrimonial home or homes, household goods and effects within such homes, or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
The courts, especially where couples cannot agree on what and how the property can be shared between them, are invited to determine contribution between and across the spouses as part of a divorce process.
Section 2 of the Matrimonial Property Act defines contribution as monetary and non-monetary contributions, including domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work.
It should be remembered that not all property acquired during the subsistence of a marriage qualify to be matrimonial property.
If such property manifests, the court would be interested to determine the beneficial interest acquired by the non-owning spouse following any contributions made to improve such property as stated in Section 9 of the Matrimonial Property Act.
Following this interpretation, valuation becomes a factor in determining contribution. This also applies to premarital property if either of the non-owning partners acquires beneficial interest.
Although there is an assumption that property acquired during a marriage is held in trust by either of the spouses, it is challengeable in court.
Similarly, the presumption that jointly registered property is based on the 50 per cent sharing, should disagreements arise, can be invalidated by the court.
Based on this section of the law, in 2018, the High Court dismissed a petition filed by FIDA Kenya challenging the concept of contribution, then proposing a 50/50 split of matrimonial property upon divorce.
In its decision, the High Court stated that sharing matrimonial property equally between spouses would open the door for a party to get into marriage and walk out of it in the event of divorce with more than they deserved.
In short, the court pleaded fairness in equal access to matrimonial property but dismissed any abstract and fixed formula that does recognise differentiated contribution, which cannot be synthesised from 50:50 assumption.
The law also has a provision for spouses to enter a prenuptial agreement before marriage to determine their property rights.
Prenuptial agreements arise as a result of Article 40 of the constitution which provide for the protection of property in any part of the country.
Consequently, under section 6(3), the Act brought rise and acknowledgement of prenuptial agreements in Kenya.
It states parties to a marriage may enter into a prenuptial agreement to determine their property rights.
Prenuptials are valid and binding in Kenya. They effectively protect certain assets, acquired prior to a marriage from being subject to division between couples upon their divorce.
However, a court can set aside such an agreement if it suspects fraud, coercion or deceit at the time and in terms of its construction. The court does not entertain injustice.
Even as the law provides for equality in rights that enable access, control and utilisation of property in marriage, it infuses cautions in the same measure.
Section 12 (1) and 12 (5) cautions matrimonial property not to be alienated in any form, either by lease, mortgage, sale or gift without spousal consent.
Sections 10 (1) and 16 of the Act provides that no spouse should, solely by reason of marriage, be liable for any personal debt contracted by the other spouse prior to their marriage.
It should be remembered that any debt borrowed from the bank, mobile money sources, solidarity groups or friends, remains a liability of the borrower.
If this is contested in court, the alleging spouse requiring sharing of the burden would have to prove that such liability resulted from their partner’s need.
A piece of advice, such transactions be put into writing, as agreements enforceable in and by law.
The legal concepts in matrimonial property help society contextualise the importance and value of family investments motivated by emotional attachment or affection.
Further, it should be understood that these concepts apply to legal marriages, which means unformalised and unregistered unions are unlikely to enjoy the same station of attention from the court.
In addition to many court decisions such as the Matrimonial Cause 20 of 2016, we conclude with Dave Meurer quote, “a great marriage is not when the perfect couple come together. It is when an imperfect couple learns to enjoy their differences. So the opposite could be true.
Eric Mukoya has over 17 years’ experience working in Kenya and abroad within the social justice sector. He’s the executive director of Undugu Society of Kenya.
