MATRIMONIAL PROPERTY
A highlight of the provisions for Pre-nuptial agreements
A Pre-Nuptial Agreement is an understanding between parties before marriage. It consists of two words, Pre – meaning before and Nuptial meaning union or wedding. A Pre-Nuptial Agreement sets out each party’s properties and rights before and after the marriage.
Pre-nuptial agreements also called Pre-nups are mostly associated with the Western culture. However, it is now an express principle enforceable in our Kenyan laws. We are guided by the Matrimonial Property Act No. 49 Of 2013 which repealed the The Married Women Property Act 1882.
- Section 6 (3) of the Act states that, “…..parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.”
Pre-nuptial agreements are purposely to protect each individual’s property rights. Basically, these decide what belongs to either party before marriage and what will remain after should they divorce or otherwise separate.
- However section 6 (4) of the Act states that “A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.”
The section seeks to ensure that the parties signing off the agreement are fully aware of the terms and conditions of the agreement and the consequences thereto. Additionally they should not forced or threatened into it but execute it at their free will.
- Section 13 of the Act provides that “…any agreement between the spouses before the marriage, marriage does not affect the ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property.”
This means that marriage does not affect the ownership of that/those properties which could have been agreed upon in the pre-nup such that it does not form part of the matrimonial property. However, matrimonial property is up for sharing.
What is Matrimonial Property?
Matrimonial Property is defined in Section 6. (1) to mean
- the matrimonial home or homes – this is where the couple resides,
- household goods and effects in the matrimonial home or homes; or
- any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
- Section 7 of the Act provides that “….Subject to section 6(3), 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.
This section seeks to clarify the fallacy that parties to a marriage are entitled to “equal property” after marriage.
- In Petition No. 164B of 2016 FEDERATION OF WOMEN LAWYERS KENYA (FIDA) VS ATTORNEY GENERAL & ANOTHER (2018) eKLR, the Petitioner had challenged the constitutionality of the above Section 7 on grounds that the said section infringed on the rights of women to owning property after the dissolution of a marriage because it required women to prove their contribution, and it created unfair discrimination against women. Consequently, the petitioner sought orders to amend the particular section to read “…….Subject to Section 6 (3), ownership of matrimonial property vests in the spouses in equal shares irrespective of the contribution of either spouse towards its acquisition, and shall be divided equally between the spouses if they divorce or their marriage is otherwise dissolved.”
In dismissing the petition, Learned Justice J.M Mativo at Para 60 stated as follows “……The interpretation preferred by the Petitioner in my view is an open invitation to this Court to open the door for a party to get into a marriage and walk out of it in the event of divorce with more than they deserve. The law recognizes equal worth and equal importance of the parties in marriage. Thus, the beneficial share of each spouse as the law on the division of matrimonial property stands in Kenya ultimately depends on the parties proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property…..Para 64 the act recognizes monetary and non-monetary contribution which is clearly defined. By providing that a party walks out with his or her entitlement based on his or her contribution, the section entrenches the principle of equality in marriage. “65 It is my conclusion that the impugned section does not offend any of the provisions of the Constitution as alleged, nor does the section contradict any of the provisions of the act.
- Section 9 of the Act states that “Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.”
This comes to check the sections 6 and 13 discussed above in that yes, a spouse may have acquire a certain property before marriage that has been mentioned in the pre-nup that does not form part of matrimonial property but the other spouse makes a contribution to it. Contribution can be in the form of improvements to the property. E.g. the spouse may own land, and a spouse erects a house. The consequent spouse acquires interest in the same and therefore becomes entitled to the his/her share upon divorce thereby questioning the validity of the pre-nup.
Conclusion
Pre-nuptial agreements are fast becoming a way of protection of individual interest in property. Over and above that, it would be difficult to enjoy its protection should the other spouse acquire some interest in the said property or should the property be used for the mutual benefit of the family.
For a Pre-nup to be effectively used to protect and individual’s property during division of matrimonial property or upon divorce, spousal rights to properties must be clearly defined and followed to the latter during the existence of the marriage.
By Mwangi Emmanuel – Managing Partner
