MATRIMONIAL PROPERTY BILL, 2012 DIGEST

(WRITTEN IN SEPTEMBER,2013)

1.NAME OF THE BILL;                                     MATRIMONIAL PROPERTY BILL, 2012            

2.HOUSE;                                                            NATIONAL ASSEMBLY

3.LINKS;

The links to the Bill are the Kenya Law Report website through http://www.kenyalaw.org/klr/index.php?id=98 ; Commission for the Implementation of the Constitution bill tracker link   http://www.cickenya.org/index.php/legislation/bill-tracker ; and the Parliament website http://www.parliament.go.ke/plone/national-assembly/business/bills.

4. STATUS OF THE BILL; 
 Forwarded to the Attorney General for publication.

5.PURPOSE OF THE BILL;
 In Kenya, there is no single detailed law dealing with matrimonial property. The law on the subject is scattered in a number of statutory instruments which include the Matrimonial Causes Act, The Married Women’s Property Act and the Law of Succession Act. The Bill thus seeks to provide a detailed legal framework in respect to the rights and responsibilities of spouses in relation to matrimonial property.

6.BACKGROUND OF THE BILL; 
The law that applies to the division of matrimonial property in Kenya, is section 17[1] of the Married Women’s Property Act of 1882 of the United Kingdom, a statute of general application in Kenya, pursuant to section 3(1) (c) of the Judicature Act. The purpose of the statute was to recognize a married woman’s legal capacity to hold property in her own right and to transact in it. The English have since repealed the law and enacted the Matrimonial Property and Proceedings act of 1970, while we in Kenya are still using the Act that was enacted in the ancient 1800’s.[2] Once the Bill becomes an Act, The Married Women Property Act shall cease to extend or apply to Kenya.

 

7.HIGHLIGHTS OF THE BILL;

Section 4 of the Bill provides for equal status of spouses and the married woman has the same right as a married man-

(    (a)    to acquire, administer, hold, control, use and dispose of property whether movable or immovable;[3]

     (b)   to enter into a contract; and

(    (c)    to sue, and be sued in her own name.

This is in line with Article 45(3) of the Constitution which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

Section 6 defines what matrimonial property means as follows-

(    (a)    the matrimonial home or homes;

(    (b)   household goods and effects in the matrimonial home or homes;

(   (c)   both immovable and moveable property other than (a) or (b),owned by both or either spouse and acquired during the subsistence of the marriage; or

(    (d)   any other property legally acquired during the subsistence of a marriage.

However, any property held by a spouse as trust property, including those acquired under customary law by inheritance or otherwise shall not form part of matrimonial property.

The section further provides for pre-nuptial/ante-nuptial agreements under section 6(3) in which the spouses may include provisions for division of property and spousal support in the event of divorce or break up of marriage. However the court may set aside the agreement if it is influenced by fraud, coercion or is manifestly unjust.[4]

A point to note is that the interest of any person in any immovable or movable property[5] acquired before the marriage shall not be affected by the marriage subject to Section 6.

Section 7,which is subject to section 6(3) provides that ownership of matrimonial property shall be deemed to vest in the spouses in equal shares irrespective of the contribution of either of them towards the acquisition, and where there is no agreement to the contrary, be divided accordingly upon the occurrence of divorce or dissolution of the marriage.

In regard to contribution, Section 2 of the Bill defines it as follows;-

“Contribution means monetary and non-monetary contribution and includes- (a)domestic work and management of the matrimonial home;(b)child care;(c)companionship;(d)management of family business or property; and (e) farm work.”

Section 9 provides that if one spouse acquires property before or during the marriage, it does not become matrimonial property. However, if the other spouse makes a quantifiable contribution towards the improvement of the property, he or she will have a beneficial interest in the property equivalent to the contribution made.

Liability incurred by a spouse before a marriage and relating to property shall after marriage, remain the liability of the spouse who incurred it.[6]However,

any liability that was reasonably and justifiably incurred shall if the property becomes matrimonial property under section 6 be equally shared by the spouses, unless they agree otherwise.

A point to note is that any liability incurred during the subsistence of marriage; or reasonable and justifiable expense for the benefit of the marriage, shall be equally shared by the spouses.

Customary law principles[7] relating to the communities in question shall be considered in the ownership and division of property between and among spouses. However, they shall be subject to the values and principles of the Constitution taking into account-

(     (a)    the customary law relating to divorce or dissolution of marriage;

(    (b)   the principle of protection of rights of future generations to community ad ancestral land as provided for under Article 63 of the Constitution;

(    (c)    the principles relating to access and utilization of ancestral land and the cultural  home by a wife or wives or former wife or wives.

Section 13 of the Bill provides that any agreement between spouses before the marriage, does not affect the ownership of property other than matrimonial property to which either spouse maybe entitled, or affecting the right of either spouse to acquire, hold or dispose of any such property. This basically means that parties may enter into an agreement before conducting their marriage to determine their property rights. This applies to their liabilities as well.

Section 14 provides that where during the subsistence of a marriage, property is acquired-

(   (a)    in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse;

   (b)   in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests therein are equal.

Section 16 provides that no spouse shall be liable solely by reason of marriage for any personal debt contracted by the other spouse prior to their marriage.

 8.KEY PROVISIONS;

Section 8(1) provides for property rights in polygamous marriages as follows;-

    (a)    Matrimonial property acquired by the man and the first wife shall be owned equally by the man and the first wife only, if the property was acquired before the man married the second wife;

(   ( b)   Matrimonial property acquired by the man after the man marries another wife shall be regarded as owned equally or equitably by the man, the first wife and the second wife taking into account any contributions individually made by any the wives, and the same principle shall be applied to any subsequent wife or wives.

Section 8(2) further provides that if there is a clear agreement of the parties that any wife has her separate matrimonial property with the husband then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.

Section 12 on special provisions relating to matrimonial property provides;-

·  No property shall be alienated from either spouse during the subsistence of the marriage, either through sale, gift, mortgage, charge or otherwise, without consent of the other spouse. · A spouse, either in a monogamous marriage or polygamous marriage, the spouse has an interest in matrimonial property capable of protection by caveat, caution or otherwise under any law in force. · A spouse shall not during the subsistence of the marriage be evicted from the matrimonial home by any person except ;- (a)on the sale of any estate on interest in the matrimonial home in execution of a decree; (b) by trustee  in bankruptcy; or (c) by mortgage or charge in exercise of power of sale or other remedy given under the law.

Section 17 on action for declaration of rights to property provides that a person may apply to a court for a declaration of rights to any property that is contested as between that person and a former spouse of the person and the application;-

(    (a)    shall be brought in compliance with the Civil Procedure Act, in accordance to procedures prescribed by the Rules Committee under section 81;and

     (b)   may be made as part of a petition in a matrimonial cause;

    (c)    may be brought notwithstanding that no petition has been brought under any law relating to matrimonial causes.

Section 18 provides that the Rules Committee shall make rules of court regulating any matter of practice or procedure under the Act.

Article 15 of CEDAW, which Kenya has ratified, provides States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

This is in line with Section 17 and 18 of the Matrimonial Property Bill, 2012.

 9.CONCLUDING COMMENTS;

The provisions of the Bill will bring the division of matrimonial property in tandem with current socio-economic factors in the society. Section 12 of the Bill will clearly provide safeguards to spousal rights to matrimonial property.

Finally, the Bill is also in line with the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)[8] to which Kenya is a signatory and was bound to affect the law on matrimonial property. Article 16 of the Convention provides;-

“1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(c) The same rights and responsibilities during marriage and at its dissolution;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.”

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[1]“ in any question between husband and wife as to the title to or possession of property, either of them may apply  to the High court or a county court and the judge may make such order with respect to the property in dispute as he thinks fit”

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[2] See more at: http://www.the-star.co.ke/news/article-115115/wifes-right-matrimonial property#sthash.PP0AdGP1.dpuf, accessed September 2, 2013.

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[3]See Article 16(1) (h) Convention on the Elimination of All Forms of Discrimination against Women(CEDAW)

[4] Section 6(4) of the Matrimonial Property Bill, 2012

[5] Ibid Section 5

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[6] Ibid Section 10

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[7]Ibid Section 11

[8]United Nations adopted and opened the Convention for signature, ratification and accession by General Assembly Resolution 34/180 of 18^th December 1979.The Convention entered into force on 3^rd September 1981,in accordance with Article 27(1)