Understanding Property Division in Marriage

The Matrimonial Property Act No. 49 of 2013 revolutionized how property is viewed within a marriage in Kenya. It defines matrimonial property and outlines the rights of spouses upon dissolution of marriage (divorce) or separation.

What Constitutes Matrimonial Property?

Matrimonial property includes:

• Matrimonial Home: The home or homes occupied by the spouses during the subsistence of the marriage.
• Household Goods: Furniture, appliances, and other effects used in the matrimonial home.
• Acquired Assets: Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

Property acquired by a spouse before the marriage remains their separate property unless it is improved or developed using matrimonial resources.

Division of Property Upon Divorce

The guiding principle is that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition. "Contribution" is defined broadly to include:

• Monetary Contribution: Direct financial input towards the purchase or improvement of the property.
• Non-Monetary Contribution: Domestic work and management of the matrimonial home, child care, companionship, and farm work.

This recognition of non-monetary contribution is a significant advancement for gender equality, acknowledging the value of unpaid care work.

Prenuptial Agreements

The Act allows spouses to enter into an agreement before marriage to determine their property rights. These prenuptial agreements are legally binding provided they are not influenced by fraud or coercion.

Larpei & Company Advocates provides sensitive and expert advice on division of matrimonial property, drafting prenuptial agreements, and representing clients in divorce proceedings.