From domestic violence to adultery, marriages in Kenya face numerous difficulties that end them prematurely. The number of divorce cases filed in Kenyan family courts has increased steadily over recent years. In 2019, 1108 divorce petitions were filed at the Milimani Law Courts, 109 more than the 909 recorded in 2017.
You may wonder why such a large number of divorce cases end up in court. Divorce cases entail several critical issues that are often difficult to agree out of court. For instance, many spouses seek court orders on how property will be divided after divorce.
Matrimonial Property and Separate Property
If you are considering filing for divorce, it is essential to understand the two major categories of property
in a marriage: matrimonial property and separate property. Matrimonial property is divided between
the spouses upon divorce while the separate property is kept by the party who owns it.
According to the Matrimonial Property Act, matrimonial property includes the family home, the
household items in the home, and “any movable or immovable property jointly owned and acquired
during the marriage.” The matrimonial home doesn’t mean the house alone; it includes properties
attached to the house, such as gardens and servant houses.
Property owned by either party before the marriage is considered separate property; it is not divided
upon divorce. Some property acquired during the marriage could be deemed to be separate property.
For example, if you had an agreement beforehand or one of the party’s contribution is zero— being in a
marriage doesn’t mean you cannot acquire property as an individual. Also, if your spouse gives a gift
during the marriage, it is not divided upon divorce as you are considered its absolute owner.
How is matrimonial property divided?
Women rights advocacy groups have been fighting for a 50-50 division of matrimonial property upon
divorce in Kenya. However, such petitions have been dismissed. Matrimonial property in Kenya is
divided according to each spouse’s contribution towards its acquisition and maintenance—the larger
your input, the larger your share:
“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.”
Contribution refers to both monetary and non-monetary input— it means you can get a share of marital property even if you didn’t contribute funds towards its purchase. Examples of non-monetary contribution include:
- Taking care of the kids
- Formwork and management of family businesses
- Domestic chores and maintaining the marital home
If your spouse owned a property before marriage, and you contributed towards its improvement and maintenance during the marriage, you can claim a share upon divorce.
What if your name is not on the title or deed on the property?
Mostly, the courts are interested in how and when the property was acquired, rather than whose name it bears. You shouldn’t avoid pursuing marital property just because your names are not on the title or deed. For instance, if you bought land with your spouse, and it bears their names alone, you can claim a share of the land upon divorce.
According to the Matrimonial Property Act:
“Where matrimonial property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse.”
What about debts?
Like assets, debts are divided between the spouses with regard to equality. You are not liable for debts that your spouse acquired before your marriage.