Divorce can be a complicated process, especially when the marriage has reached a point of irretrievable breakdown. Finances especially are a difficult area to navigate, particularly when the split is not amicable. Knowing then that this is an unavoidable discussion it is in the best interests of each spouse to be aware of their rights in preparation for the long journey towards legal separation.
In Kenya, the law governing this area is the Matrimonial Property Act 2013 which is to be read with The Constitution of Kenya 2010. Article 45 first of all grants equal rights to the parties in a marriage at the point of entering the marriage, during the subsistence of the marriage and on dissolution. This is important because no party will then be prejudiced at the first instance.
The Matrimonial Property Act provides for the separation of property. This is to say that if any of the spouses acquired property before the marriage was officiated, the property does not become matrimonial property merely by the fact of the marriage. It will only be considered matrimonial if the spouse under whose name the property is registered intends and makes steps towards making it a joint property.
The same applies to debt. Spousal liability is covered in section 10 of the act which provides that any liability such as loans and mortgages which a spouse enters into before the marriage will remain as that spouse’s sole liability. This will be so unless the property related to that debt is made into a matrimonial property by the consent of the two parties. If it is made into matrimonial property under joint registration, then if the liability was reasonably and justifiably incurred it will be shared by the spouses.
All other debts and liabilities incurred during the subsistence of the marriage will only be shared if they were reasonably and justifiably incurred for the benefit of the family.
Spousal consent is a requirement when dealing with any property considered matrimonial. This is to say that if one spouse wants to take a loan using the couple’s land as security before the loan is approved the other spouse must sign to show consent without coercion. This protects either spouse from being bound to a debt which he/she did not know about.
The act is progressive in that it allows spouses to enter into prenuptial agreements to determine their property rights in case of breakdown. However, section 6(3) is clear on the fact that an agreement of this nature will only be enforced by the court if it was drawn without fraud, coercion or manifest injustice.
With all this in mind, take the example of John and Jane who are in court filing for a divorce. The court will not consider whose fault it is that the marriage is failing. Each of them will have to prove to the court through title instruments which assets constitute matrimonial property, and which are separate property. The court will then divide the matrimonial assets between the two according to each of their contributions ( both direct, which is monetary, and indirect, which could be domestic work and companionship). Their liabilities will also be split between them if they were incurred for the benefit of the family, taking into account each of their incomes.