Help! Elders want me to forfeit a house I helped my estranged husband build
The Matrimonial Property Act, 2013, defines matrimonial property as either the matrimonial home, household goods and items in the matrimonial home, or any movable or immovable property jointly owned and acquired during the marriage.
What you need to know:
- Who owns what has been a long-standing issue in Kenyan marriages, especially at the point of separation or divorce.
- For a long time, women were meant to show contribution, which was often considered to be financial.
Dear Vivian,
I had a customary marriage in 1990 that we later registered at the Attorney General’s office. We, however, separated in 2015. My dispute is centred on a house we constructed in Baricho while we were still married. It is registered in my husband’s name even though I had taken loans to offset some building costs. At one point in the marriage, I stopped working and became a housewife. We took the house ownership issue to community elders, who said I had not contributed enough and, therefore, I should forfeit it. Please, advise.
Esther Gichohi,
Baricho
Dear Esther,
Who owns what has been a long-standing issue in Kenyan marriages, especially at the point of separation or divorce. For a long time, women were meant to show contribution, which was often considered to be financial. At the same time, these women had contributed in other ways such as being caregivers as their husbands looked for money. This general analogy is similar to your situation, only that now the law came in to cure such ambiguities.
It was necessary to cure gaps around matrimonial property. Women, despite contributing even financially, would consider it ‘submission’ by allowing their husbands to be the sole registered owner of matrimonial properties. I note that you have not filed for divorce. It is the first place to begin as matrimonial property cannot be divided if you are still legally married. Divorce is the legal separation of husband and wife by the judgment of a court. After divorce, matrimonial property has to be shared.
The Matrimonial Property Act, 2013, defines matrimonial property as either the matrimonial home, household goods and items in the matrimonial home, or any movable or immovable property jointly owned and acquired during the marriage.
More specifically on housework, Justice Teresia Matheka, sitting in the High Court in Nakuru, observed that contribution would have to include not only tangible financial contribution but also the unseen contribution such as housework. She noted that the other part of mothering, housekeeping and taking care of the family is more often than not, not given any value when it comes to sharing matrimonial property and that it is easy for the spouse working away from home and sending money to lay claim to the whole property.
The Supreme Court in January expounded that contribution may either be direct and monetary or indirect and non-monetary. In fact, it said indirect contribution is whereby the actions of a spouse, or their deeds, provided an environment that enabled the other party to have more resources to acquire the property financially. However, the test to be applied to determine the extent of contribution is ultimately one of a ‘case-to-case basis’.
The above legal standing is to allow you to not ignore the contribution you have provided for the family. When the moment comes, it will be good to explain before the court the roles you played during the subsistence of the marriage.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
