Matrimonial Property Bill 2012

PART I – RELIMINARY 1—Short title. 2—Interpretation. PART II — G NERAL PROVISIONS 3—Application of Islamic law. 4—Equal status of spouses. 5—Rights and liabilities of a per an. • PART III — TRIMONIAL PROPERTY 6—Meaning of matrimonial prop rty 7—Ownership of matrimonial pr perty. 8—Property rights in polygamou marriages. 9—Acquisition of interest in pro erty by contribution. 10—Spousal liability. 11—Consideration of customary aw principles.

12—Special provisions relating t matrimonial property. PART IV — S PARATE PROPERTY 13—Separate property of spouse 14—Presumptions, as to property cquired during marriage. 15-2Gifts between spouses. 16—No liability for antecedent d bts of a spouse. 5480 The Matrimonial Property Bill. 2012 PART V – JURISDICTION AND PROCEDURE 17—Action for declaration of rights to property. 18—Rules. 19—Cessation of application of Married Women Property Act.

THE MATRIMONIAL PROPERTY BILL, 2012 A Bill for AN ACT of Parliament to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes ENACTED by the Parliament of Kenya as follows— PART I – PRELIMINARY Short title. 1. This Act may be cited as the Matrimonial Property Act, 2012. 2. In this Act, unless the context otherwise requires— “contribution” means monetary and non-monetary contribution and includes— (a) domestic work and management of the matrimonial home; (b) child care; (c) companionship; Interpretation.

The Matrim nial Property Bill, 2012 5481 (d) management of family business or property; and (e) farm work; “family business” means any business which— (a) is run for the benef of the family by both spouses or either spo se; and (b) generates income or other resources wholly or part of whichfor the benefit of the family; “matrimonial home” m s any property that is owned or leased by one or both pouses and occupied or utilized by the spouses as eir family home, and includes any other attached pro erty; “matrimonial property has the meaning assigfied to it in section.

5; “spouse” means a husb • d or a wife. PART II—GENE PROVISIONS 3. A person who professe. the IslaMic faith shall be governed by Islamic law • all matters relating to matrimonial property. 4. Despite any other law, married woman has the same rights as a married man (a) to acquire, administ r, hold, control, use and whether movable or dispose of prope immovable; (b) to enter into a contr • t; and Application of Islamic law. Equal status of spouses. 5482 The Matrimonial Property Bill, 2012 (c) to sue and be sued in her own name. Rights and liabilities of a person. 5.

Subject to section 6, the interest of any person in any immovable or movable property acquired before marriage shall not form part of the matrimonial property. PART III— MATRIMONIAL PROPERTY Meaning of matrimonial property. 6. (1) For the purposes of this Act, matrimonial property means— (a) the matrimonial home or homes; (b) household goods and effects in the matrimonial home or homes; (c) any other immovable and moveable property owned by both or either spouse and acquired during the subsistence of the marriage; or (d) any other property acquired during the subsistence of the marriage.

(2) Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property. (3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. (4) A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by The Matri onial Property Bill, 2012 5483.

fraud, coercion or is manifestl unjust. 7. (1) Subject to secti n 6(3), ownership of matrimonial property vests ‘n the spouses in equal shares irrespective of the con ‘bution of either spouse towards its acquisition, and hall be divided equally between the spouses if they di orce or their marriage is otherwise dissolved. (2) Despite subsection (1), a party to a marriage may apply to the Court fo a determination of the matrimonial property rights 11 f the spouse during the subsistence of the marriage • d the Court may make such a determination.

8. (1) If parties to a pol gamous marriage divorce or a polygamous marriage is o erwise dissolved, the— (a) matrimonial prope y acquired by the man and the first wife s all be retained equally by the man and the first wife only, if the property was ac wired before the man married another-wi e; and (b) matrimonial prop after the man m regarded as owne wives taking into made by the man acquired by the man es another wife shall be by the man and the other ccount any contributions d each of the wives.

Property rights in polygamous marriages. Ownership of matrimonial property. (2) Despite subsection (1)(b), where it is clear by agreement of the parties that any wife has her separate matrimonial property with th husband, then any such wife shall own that matrimo ‘al property equally with the husband without the part ipation of the other wife or wives. 5484 Acquisition of interest in property by contribution. The Matrimonial Property Bill, 2012 9.

Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made. 10. (1) Any liability incurred by a spouse before the marriage and relating to the property shall, after marriage, remain the liability of the spouse who incurred it.

(2) Despite subsection (1), any liability that was reasonably and justifiably incurred shall, if the property becomes matrimonial property be equally shared by the spouses, unless they otherwise agree. (3) Parties to a marriage shall share equally any— (a) liability incurred during the subsistence. of the marriage; or (b) reasonable and justifiable expense incurred for the benefit of the marriage. Spousal liability. Consideration of customary law principles. 11.

During the division of matrimonial property between and among spouses, customary law of the communities in question shall, subject to the values and principles of the Constitution, be taken into account including— (a) the customary law relating to divorce or dissolution of marriage; The Matrimonial Property Bill, 2012 5485 (b) the principle of protection of rights of future generations to community and ancestral land as provided for under Article 63 of the Constitution; and (c) the principles lating to access and utilization of ances al land and the cultural home by a wife or yes or former wife or wives.

12. (1) An estate or int property shall not, during monogamous marriage and mil spouses be alienated in any f sale, gift, lease, mortgage or o rest in any matrimonial the subsistence of a out the consent of both rm, whether by way of erwise. Special provisions relating to matrimonial property. (2) A spouse in a mon gamous marriage, or in the case of a polygamous m age, the man and any of the man’s wives, have an nterest in matrimonial property capable of protectio by caveat, caution or otherwise under any law for e time being in force relating to the registration of tit e to land or of deeds. (3)

A spouse shall not, uring the subsistence of the marriage, be evicted from e matrimonial home by or at the instance of the other s • ouse except by order of a court. (4) Subject to subsectio (3), a spouse shall not be evicted from the matrimo al home by any person except— (a) on the sale of an estate or interest in the matrimonial home in execution of a decree; (b) by a trustee in bptcy; or 5486 The Matrimonial Property Bill, 2012.

(c) by a mortgagee or chargee in exercise of a power of sale or other remedy given under any law. (5) The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses. PART IV— SEPARATE PROPERTY Separate property of spouses. 13. Subject to this Act and any agreement between the spouses before the marriage, marriage does not affect the ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property.

14. Where matrimonial property is acquired during marriage— (a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal. Presumptions as to property acquired during marriage. (b) Gifts between spouses. 15. Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption.that the property thereafter belongs absolutely to the recipient.

The Matrim nial Property Bill, 2012 5487 16. A spouse is not li le, solely by reason of marriage, for any personal deb contracted by the other spode prior to their marriage. PART V— JURISDICTION D PROCEDURE No liability for antecedent debts of a spouse. 17. (1) A person may applya court for a declaration of rights to any p operty that is contested between that person and a spo se or a former spouse of the person.

(2) An application unde subsection (1)— (a) shall be made in accordance with such procedure as may prescribed; and (b) may be made as art of a petition in a matrimonial cause; tanding that a petition (c) may be made no has not been filed der any law relating to matrimonial causes. 18. The Rules coittee established under section 81 of the Civil ProcedAct shall make rules regulating any matter of practi e or procedure under this Act. 19. The Married Wo en Property Act shall cease to extend to or apply in enya. Action for declaration of rights to property. Rules. Cap 21.

Cessatioq of application of Married Women Property Act. 5488 The Matrimonial Property Bill, 2012 MEMORANDUM OF OBJECTS AND REASONS The main object of this Bill is to cater for matrimonial property disputes in Kenya. The Bill provides for the rights and responsibilities of spouses in relation to matrimonial property. Part II of the Bill states the general principles to be applied in matrimonial matters. These principles include equal legal status of men and women in marriage, the recognition of the capacity of either spouse to acquire separate property during the subsistence of the marriage.

Ths_Rart further provides that persons professing the Islamic faith shall be governed by Islamic law in all matters relating to matrimonial property. Part III of the Bill defines matrimonial property and also sets out the law and procedures applicable thereto. The Part provides that matrimonial property means the matrimonial home, household goods and effects in the matrimonial home, immovable property owned by either spouse which provides basic sustenance for the family and any other property acquired during the subsistence of the marriage which the spouses expressly or impliedly agree to be matrimonial property.

The Part further states that matrimonial property shall be deemed to vest in the spouses in equal shares regardless of the contribution of either of them towards the acquisition thereof. The Part also provides that no estate or interest in any matrimonial property shall be alienated in any manner without the prior consent of both spouses and that neither spouse shall be liable to be evicted from the matrimonial homes except in accordance with a court order. Part IV of the Bill provides for separate property during the subsistence of a marriage.

The Part provides that, marriage shall not affect the ownership of any property to which either spouse may be entitled to separately. The Part further stipulates that where property is acquired in the name of one spouse, there shall be a rebuttable presumption that the property belongs absolutely to that spouse but where property is acquired in the names of the spouses jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. The Matrimonial Property Bill, 2012 5489 Part V of the Bill provid s for matters relating to jurisdiction and procedure in matrimonial m ers.

The Part provides that a person may apply to a court for a dec aration of rights to any property that is contested between spouses or former spouses. The Part further empowers the Rules Comm ee established under the Civil Procedure Act, Cap. 21, Laws of Keny , to make Rules concerning any matter of practice or procedure under t e Act. The Part also specifies that upon the enactment and the coming in operation of the Act, the Married Women Property Act shall cease to ex end or apply in Kenya. Dated the 9th Novembe , 2012. GITHU MUIGAI, Attorney-General.