Want to know more about the division of matrimonial property and how it affects you? Our article explores some of the most frequently asked questions on the topic
Is my spouse entitled to half of my assets/half of my house in the event of a divorce?
Not necessarily. According to Kenyan law, separately owned assets remain the property of the sole owner, unless there has been commingling or improvements that could grant your spouse an interest in your separate property. In such cases, your spouse may not be entitled to half, but rather a percentage equivalent to their contribution to the property’s improvement, which may or may not be 50% of its value. However, if your house becomes the matrimonial home during the marriage, the rules outlined in the Matrimonial Property Act come into effect.
What happens to property owned before marriage?
Property owned separately before marriage remains separate unless your spouse contributes to its improvement, in which case they may acquire an interest in that separate property. Parties can establish a prenuptial agreement to distinguish separately owned property from matrimonial property. During a matrimonial property case, the owner of the separate property typically presents evidence to demonstrate that no improvements or commingling occurred, thus asserting their exclusive ownership.
Do assets acquired in my name during marriage become matrimonial property?
The Matrimonial Property Act upholds the legal principle of property separation acquired before or after marriage, subject to rules regarding commingling or improvements by the spouse. Therefore, if you maintain your separately owned property separate from jointly owned property, you retain 100% ownership of those assets.
Can business assets be considered as matrimonial property?
Yes, it is possible for your spouse to acquire a share in your business, entitling them to an interest.
What qualifies as matrimonial assets and non-matrimonial assets?
Matrimonial assets include the family home, its contents, and assets acquired jointly during the marriage. Non-matrimonial assets are those individually acquired by you or your spouse before or during the marriage. It’s important to note that your spouse may also acquire a beneficial interest in separately owned property based on their contribution, such as through improvements or commingling.
What factors do Kenyan courts consider when dividing assets in a divorce? Courts consider various factors, including:
- Financial contributions toward acquiring or improving assets.
- Non-financial contributions toward acquiring or improving assets.
- Well-being of minor children (e.g., the impact of property division on their rights).
- Customary law in the case of customary marriages.
- Livelihood of spouses.
Is my spouse entitled to half of our matrimonial property in a divorce?
Not necessarily. Court decisions have interpreted that the reference to equal rights under marriage in Article 45 of the Kenyan Constitution does not necessarily imply a division of marital assets. Instead, it pertains to equal treatment and consideration of both men and women under the law regarding marriages. Accordingly, the law states that your spouse is entitled to a percentage equivalent to their contribution toward acquiring the asset, which may or may not be half of the property.
Do I have to sell my house to grant my spouse a share in our matrimonial home?
Parties have the option to sell their respective shares in the matrimonial home to each other, allowing the remaining spouse to become the sole owner. In some cases, if there are minor children residing in the home, the court may direct the parties to come to an arrangement that ensures the children are not at risk of homelessness. The court considers which parent has primary custody when making such decisions.
Will I lose my marital home if I didn’t contribute financially to its purchase?
Not necessarily. The court is obligated to consider both financial and non-financial contributions toward acquiring the family home. For example, stay-at-home spouses or spouses who have contributed non-financially, even if not listed on the title documents, can rely on their non-financial contributions to make
