Who has the right to keep matrimonial home after divorce?
When dealing with matrimonial property, the court has to consider the extent to which the contributions were made by each party.
Hi Eric,
After a formalised separation or divorce, who has the right to remain in the matrimonial home and what factors determine this right?
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The discussion as to who has the right to remain in the house upon separation or divorce could be a matter of spousal agreement, if couples opt to uphold reason and sobriety towards a less stressful problem-solving process.
It can also become a centre for contestation, likely in a court of law, if the magnitude of personal interests in such property finds minimal consideration in direct spousal negotiations. If the spouses choose to vacate their ability to sort out such issues, then the court is moved to employ what the law has provided.
The Matrimonial Property Act of 2013 refers to this at Section 2 as the matrimonial home, the property that is owned or leased by one or both spouses and occupied or utilised by the spouses as their family home, and includes any other attached property.
The first and the most fundamental tenet in a marriage is the premise of equal partnership between the wife and husband. This is found at Article 45 of the Constitution, which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. This is emphasised by Article 27 of the Constitution, which states that all people irrespective of their status, gender, race and sex amongst others are equal before the law.
Spouse contribution
Second principle found in Section 7 of the Matrimonial Property Act, guides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved. However, this is executed upon referencing Section 6 (3) of the same Act, which determines whether there exists a pre-nuptial property agreement between the feuding couple. Should there be, then the court will factor part of whole of the terms within such pre-nuptial agreement in its decision.
Further, at Section 14 of the Matrimonial Property Act, it is provided that property acquired in the life of a marriage and registered in the name of one spouse is held in trust of the other partner. This provision has two important aspects. First, it recognises the possibility of non-monetary contribution to the acquisition of family property.
Secondly, it acknowledges the import of protecting spouses with less income bargaining power and historically most females have fallen victims. The reason for using female as a terminology in a marriage scenario, is because wives, in the current times of diverse gender discourse can be misleading.
The courts have on several occasions pronounced themselves on this matter. In the case of Njoroge vs Daudi alias Ngari (1985) eKLR, the court declared that the property acquired during the subsistence of the couple’s marriage was joint property available for equal distribution despite being registered in the husband’s name.
Further, in the case of MWG vs TKG (2016) eKLR, similar to that of M vs M (2008) IKLR 2017 (G and F), and JW Vs CWM (2017) eKLR Civil Case (OS) 4 of 2016, the court held that non-monetary contribution of a wife entitled her to half share of the matrimonial property.
To contextualise the issue of contribution, Section 2 of the Matrimonial property Act outlies it as such: domestic work and maintenance of matrimonial property, child care, companionship, maintenance of family business and farm work. The court may choose to be creative on other considerations depending on the claims and nature of evidence placed before it.
Documents to prove contribution
When dealing with matrimonial property, the court has to consider the extent to which the contributions were made by each party, any debts owed by one of the parties made for their joint venture and the needs of the children from the marriage, who are not yet of age, if at all.
To ensure that the court’s work is made lighter, it may be prudent to have documents that prove contribution such as purchase receipts, school fees receipts, loan bank statements, mortgage agreements and so on.
While it is difficult to produce evidence indicating one used most of their monies to cater for family groceries and the like, a chronological presentation of income utilisation patterns in the family, which may demonstrate differentiated responsibility stands as rebuttable argument before the magistrate.
Fairness in this case will be how the court interprets all the submission put before it. Otherwise, the probability of 50/50 sharing of the matrimonial property is as remote just as is complete repudiation. No one has absolute right to remain in the house, but the best interest of the child principle could swing the possibility of the mother remaining in the house if such children in the union are minors.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya.
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