I bought a piece of land two years after getting married. Is this matrimonial property? I didn’t think it was important to tell my husband.
Property ownership is not a restricted right, nor does it impose conditions on individuals seeking to own property beyond those established by law. According to Article 40, Clause 1, paragraphs (a) and (b) of the Constitution of Kenya, every person, whether acting individually or in partnership with others, has the right to acquire and own property of any kind in any part of Kenya.
This right is only limited by the provisions of Article 65, which outlines the conditions under which foreigners may hold land in Kenya. Therefore, individuals have the legal right to purchase and own property without any obligation to inform others about the acquisition and ownership of that property.
Matrimonial property should be understood in the context of marriage as a larger institution. To determine whether a property falls under the ownership of couples in matrimony, it is essential to first establish the existence of legal records that document and confirm the marriage.
Section 3 of the Marriage Act and the Marriage Customary Rules of 2017 serve as the governing law underpinning Article 45 of the Constitution, which defines marriage.
Additionally, Sections 17 to 49 of the Act outline the five types of marriage recognised in Kenya, where the possibility of polygamy is restricted to customary and Islamic unions.
In a marriage, as stated in Article 45 of the Constitution and reiterated in Section 3(2) of the Marriage Act, both parties have equal rights at the time of marriage, during the marriage, and at the time of its dissolution.
In this regard, husbands and wives must be treated equally by the law, as mandated by Article 27(1) of the Constitution. Consequently, matrimonial property is defined in the context of ownership by spouses within a marriage.
What qualifies as matrimonial property? Section 6 of the Matrimonial Property Act of 2013 outlines this. It includes the matrimonial home or homes, household goods and effects that are part of the matrimonial homes, and any other movable or immovable property that is jointly owned and acquired during the marriage.
Based on this definition, it is clear that the property in question does not qualify as matrimonial property.
At what point does property that is not jointly owned become contentious enough for one spouse to seek its designation as matrimonial property? This typically occurs when a dispute arises concerning divorce, separation, or property ownership between spouses.
According to Section 7 of the Matrimonial Property Act, ownership of matrimonial property, in the absence of a functional prenuptial agreement (as outlined in Section 6(3), is determined by the contribution of each spouse towards its acquisition.
In the event of a divorce or dissolution of the marriage, this property shall be divided between the spouses. If one is part of a polygamous marriage, then Section 8 of the Matrimonial Property Act applies to help address property-related issues.
The law addresses the situation in which your husband may claim ownership of the land you purchased without his knowledge and presumptively his financial contribution. Section 9 of the Matrimonial Property Act outlines the rights related to beneficial interest.
It states that when one spouse acquires property before or during the marriage, that property does not automatically become marital property. However, if the other spouse contributes to the improvement of the property, they acquire a beneficial interest in it that corresponds to the value of their contribution.
According to Section 2 of the Matrimonial Property Act, contributions can be both monetary and non-monetary. Non-monetary contributions include domestic work, childcare, companionship, management of the marital home, and involvement in the family business.
It may also encompass support in accessing financial resources, such as loan guarantees, especially when using a spousal pay slip to enhance the credibility of the applicant.
The courts in Kenya have examined this matter thoroughly on several occasions. In the case of PNN v. ZWN (2017), the Court of Appeal stated that the framers of Article 45(3) of the Constitution did not intend for parties in a marriage to divide matrimonial property equally on a 50/50 basis.
Instead, the Court noted that the term "equal rights" implies that each party's share of the property should depend on the extent of their contributions. Interpreting this to mean an absolute 50/50 division would unnecessarily limit the rights described in Article 40 of the Constitution beyond what is stipulated in Article 65.
