The Legal Beagle: Getting Married? Here Is What You Need To Know About Property Acquired Before And After Marriage

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Black couple getting married image from http://markmaish.com/2017/04/25/night-before-the-wedding/

Last week a popular social media posts read, “…My woman and I are planning on getting marries next year but there’s one thing we keep fighting about. She happened to own a house, I don’t. I asked her to sell it or rent it out we start afresh, amekataa. There is no way I am going to live in a woman’s house.”

This prompted a lot of discussions which you can check out here.

Another urban legend that I have heard about is the one where a man was shocked to find out that the house, he had been paying rent to for a number of years was actually owned by the wife.

Both these instances normally spark a lot of conversation with extreme views being held on each side and raise a few questions with regard to how matrimonial property is viewed within the Kenyan culture.

The Matrimonial right Property Act sets out the rights of spouses with regards to property acquired during or before marriage. Under the Kenyan Constitution, the equality of the sexes is enshrined and the right to own property is provided equally for both men and women. The Matrimonial Property Act begins with an assertion of these rights providing that “Despite any other law, a married woman has the same rights as a married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable; to enter into a contract, and to sue and be sued in her own name.”

Matrimonial property is defined as all the matrimonial home, household goods and effects and any other property jointly owned and acquired during the marriage. The rights to these properties may be varied through a pre-nuptial agreement that may be entered into prior to marriage.

In creating the agreement, betrothed parties are able to gain a clear understanding of their financial position, habits and future prospects. The agreement acts as insurance in that should a marriage contract end, the prenuptial agreement protects the separate property of the spouses acquired without the input of the other spouse. This means any property acquired before or during the marriage by one of the spouses remains their sole property without the other spouse(s) laying claim to it.

The act further defines what constitutes matrimonial property as that which is acquired using the contribution of the spouses involved. The contribution can be either financial or non-financial, which will be determined by the court upon dissolution of the marriage.

Financial Discussions Couples Should Have Before They Get Married

Looking at the issues raised in social media the question that may arise is what rights do you or your spouse have over property you owned before marriage. The Act is very clear that property is only considered to be matrimonial if it is acquired after the marriage.

However, these rights are not absolute. Under Section 9 of the Act, property acquired prior to marriage is not considered matrimonial property but your spouse can acquire a beneficial interest to the property where they have contributed to the improvement of the property.

© 2020 Ojima Abalaka for Human Rights Watch. Image from https://www.hrw.org/report/2020/06/25/once-you-get-out-you-lose-everything/women-and-matrimonial-property-rights-kenya

The Act however does provide for spouses to own separate property, being that which is acquired without the contribution of the other spouse, is not jointly owned. Therefore, in the instance of where the husband had been making rent payments to the wife without knowing, an argument can be made that the wife intended to hold the property as separate from the matrimonial property and therefore charged the family rent to utilize it.

Any issues relating to the property is usually emotive, particularly in a marriage. However, what is clear is that every person who is about to get married or is already married, ought to know and understand what their rights are. As always if you are in doubt please talk to an advocate and get legal advice.

Ladies check out this article – Once You Get Out, You Lose Everything

If you are worried about your assets, check out this article on Marriage: The Importance Of A Prenuptial Agreement And The Things To Include

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