Matrimonial property law in Kenya refers to the legal framework that governs the ownership, management, and distribution of property acquired during marriage. It primarily aims to ensure fairness and protection for both spouses in case of divorce, separation, or death. In Kenya, the law that governs matrimonial property is the Matrimonial Property Act of 2013. Here are some key points to note:

1. Types of Matrimonial Property:
   • The Matrimonial Property Act recognizes two types of property in a marriage: matrimonial property and separate property.
   • Matrimonial property includes all assets acquired by either spouse during the marriage, regardless of whether they are in joint or individual names.
   • Separate property refers to assets owned by each spouse before marriage or acquired by gift or inheritance during the marriage.
2. Ownership and Management:
   • Matrimonial property is considered to be owned jointly by both spouses, regardless of the actual name on the property document.
   • Both spouses have equal rights to manage and control matrimonial property, and decisions must be made jointly.
3. Equal Sharing:
   • The Matrimonial Property Act promotes the principle of equal sharing of matrimonial property upon divorce or separation.
   • In the event of divorce or separation, the court has the authority to divide the matrimonial property in a just and equitable manner, taking into account factors such as contributions, needs, and other circumstances.
4. Contributions:
   • Contributions to the acquisition, improvement, or maintenance of matrimonial property can be financial, non-financial, or indirect. These contributions are taken into consideration during property division.
   • Contributions can include monetary contributions, homemaking, childcare, and career sacrifices.
5. Prenuptial and Postnuptial Agreements:
   • The Matrimonial Property Act recognizes prenuptial and postnuptial agreements that outline how matrimonial property will be divided in case of divorce or separation.
   • However, the court has the discretion to set aside such agreements if they are deemed unfair or unconscionable.
6. Protection of Rights:
   • The law seeks to protect the weaker spouse from being disadvantaged during property division.
   • The court has the power to order maintenance and support payments to ensure the financial security of the disadvantaged spouse, especially if they have custody of children.
7. Survivorship Rights:
   • In the case of a spouse's death, the surviving spouse is entitled to a share of the matrimonial property, even if the deceased spouse's will states otherwise.
8. Cultural and Religious Considerations:
   • The Matrimonial Property Act acknowledges the diversity of Kenyan cultures and recognizes that customs and traditions may influence property ownership and distribution.
   • However, the Act ensures that these customs do not discriminate against any spouse's rights.
9. Registration and Documentation:
   • It's advisable for spouses to properly document and register their matrimonial property to avoid disputes and ensure legal recognition of ownership.

Disclaimer!

The provision of general advice in this document does not create an attorney-client relationship with any reader. This article's information, content, and material are provided solely for general informational purposes. Readers of this article should contact us on 0733610961 or email at wjmaxwell.co.ke if they need legal advice on any specific legal issue.

Is my spouse entitled to a 50% share of my assets or half of my house in the event of divorce?

Not necessarily. According to Kenyan Law, individually owned assets remain the property of the sole owner, unless commingling occurs that could grant your spouse a stake in your separate property. As a result, your spouse might gain a stake in previously separate assets, but this doesn't automatically guarantee a 50% entitlement. Instead, your spouse's entitlement would be proportional to their contribution toward its enhancement, which may or may not equate to 50% of its value. On another note, if your house becomes the matrimonial home during the marriage, the rules stipulated in the Matrimonial Property Act would apply.

What happens to property owned prior to marriage?

Individually owned property retains its status unless your spouse contributes to its improvement, potentially leading to their acquisition of interest in said property. Couples can establish a prenuptial agreement to distinguish between separately owned and matrimonial property. Therefore, during matrimonial property proceedings, the burden often falls on you, as the owner of what you consider your separate property, to demonstrate that no enhancements or commingling have transpired to grant your spouse a share in that separate property.

Do assets I acquire in my name during the marriage become matrimonial property?

The Matrimonial Property Act upholds the legal principle of property separation acquired before or after marriage, contingent upon regulations regarding commingling or enhancements by your spouse. In essence, if you maintain a clear distinction between individually owned and jointly owned property, you retain a full 100% interest in those assets.

Can business assets be classified as matrimonial property?

Yes, there exists the possibility for your spouse to gain a stake in your business, entitling them to a portion.

What qualifies as matrimonial assets versus non-matrimonial assets?

Matrimonial assets encompass the family home and its contents, along with assets acquired jointly during the marriage. Conversely, non-matrimonial assets encompass those separately acquired by both you and your spouse before or during the marriage. Notably, your spouse may also acquire a beneficial interest in separately owned property based on contributions, such as enhancements or commingling.

What factors do Kenyan Courts consider when dividing assets in divorce cases?

Courts evaluate numerous factors, including:

1. Financial contributions to asset acquisition or improvement.
2. Non-financial contributions to asset acquisition or improvement.
3. Well-being of minor children (e.g., impact of asset division on their housing rights).
4. Customary Law pertinent to customary marriages.
5. Livelihood of both spouses.

Is my spouse entitled to half of our matrimonial property during divorce proceedings?

Not necessarily. Legal precedents exist where courts have interpreted equal rights under marriage as referenced in Article 45 of the Kenyan Constitution, not as equal division of marital assets, but as equal treatment of both genders under the law regarding marriage-related matters (e.g., women retaining property rights post-marriage). Consequently, Kenyan law dictates that your spouse is entitled to a proportionate share based on their contribution to asset acquisition (which may or may not amount to half of the property).

Do I have to sell my house to provide my spouse with a share of our matrimonial home?

Parties can opt to sell each other their respective shares in the matrimonial home, allowing the remaining spouse to retain sole ownership. Alternatively, in cases where minor children reside in the home, the court may mandate an arrangement that safeguards the children from homelessness. In such scenarios, the court factors in primary custody.

Can I lose my marital home if I didn't financially contribute to its purchase?

Not necessarily. The court is obligated to consider both financial and non-financial contributions toward obtaining the family home. For instance, spouses who stay at home or contribute in non-monetary ways, despite not appearing on the title documents, can use their non-financial input to assert their claim to matrimonial property. The court requires a clear demonstration of the non-financial contribution forming the basis of the claim in any matrimonial property case.

I purchased our marital home using my personal funds entirely. Is my spouse still entitled to a share?

Depending on the specifics of each case, your spouse could gain an interest in the home and potentially be entitled to a portion of the matrimonial home, as defined by law, provided they have made any form of contribution to its acquisition, whether financial or non-financial.

Can my spouse evict me from our marital home without a court order?

No. Matrimonial law prohibits your spouse from evicting you without obtaining a court order. Consequently, you have the right to reside in your matrimonial home.

Disclaimer!

The provision of general advice in this document does not create an attorney-client relationship with any reader. This article's information, content, and material are provided solely for general informational purposes. Readers of this article should contact us on 0733610961 or email at info@wjmaxwell.co.ke if they need legal advice on any specific legal issue.

Title: How to Legally Change your Name in Kenya

Introduction

Changing your name is a personal choice that may arise for various reasons, such as marriage, divorce, religious conversion, or simply a desire for a fresh start. In Kenya, the process of legally changing your name is straightforward but requires following specific legal procedures. This article will guide you through the steps to legally change your name in Kenya.

Determine the Reason for the Name Change

Before embarking on the legal process, it's essential to identify and document the reason for your name change. Common reasons include marriage, divorce, personal preference, or religious conversion. Understanding the motive behind the change will help you navigate the process more smoothly.

1. Obtain a Deed Poll

A Deed Poll is a formal legal document that records your name change and is recognized by government authorities and institutions. To obtain a Deed Poll:

1. Draft a Deed Poll document, which includes your old and new names, the reason for the change, and a statement that you renounce your former name.
2. Sign the Deed Poll in the presence of a witness, preferably a lawyer, notary public, or commissioner for oaths.
3. Have the witness sign and stamp the Deed Poll.
4. Keep multiple copies of the Deed Poll for future use.

2. Obtain an Affidavit

An affidavit is a legal document in which you make a sworn statement about your name change. To get an affidavit:

1. Visit a lawyer, a notary public, or a court registrar's office.
2. Explain your reasons for the name change and provide any supporting documents.
3. Swear an oath in front of a commissioner for oaths or a magistrate.
4. Pay the required fee for the affidavit.

The affidavit should contain your current and desired names, the reason for the change, and your personal details.

Publish a Notice of Name Change

After obtaining the affidavit, you must publish a notice of your name change in the Kenya Gazette, a government publication. This notice serves as a public record of your name change and allows anyone with objections to come forward.

To publish a notice:

1. Visit the Kenya Gazette office or its website (www.kenyagazette.co.ke).
2. Follow their guidelines for submitting a notice of name change.
3. Pay the necessary publication fee.

The notice should include your old and new names, the reason for the change, and your contact information.

Update Your Official Documents

Once you have the Deed Poll, it's time to update your official documents to reflect your new name. Start by updating your:

1. National Identity Card (ID)
2. Passport
3. Driver's License
4. Bank accounts
5. Social media profiles
6. Any other relevant documents or accounts

Visit the respective government offices or institutions to initiate the name change process. You'll typically need to submit the Deed Poll, your old documents, and the published notice as evidence.

Notify Relevant Parties

Inform your family, friends, employers, and other contacts about your name change. You may also want to consider updating your name on official records, such as school certificates, academic transcripts, and professional licenses.

Conclusion

Legally changing your name in Kenya is a straightforward process that involves obtaining an affidavit, publishing a notice in the Kenya Gazette, creating a Deed Poll, and updating your official documents. Ensure that you follow the correct legal procedures and guidelines to avoid any complications during the name change process. Remember that transparency and clear communication with relevant parties are essential for a smooth transition to your new name.

Disclaimer!

The provision of general advice in this document does not create an advocate-client relationship with any reader. This article's information, content, and material are provided solely for general informational purposes. Readers of this article should contact us on 0733610961 or email at info@wjmaxwell.co.ke if they need legal advice on any specific legal issue.

Introduction

When two individuals decide to tie the knot and embark on the journey of marriage in Kenya, they may not initially consider the possibility of divorce. However, with divorce rates on the rise, it's essential to be prepared for any unforeseen circumstances. One way to safeguard your assets and financial interests is through an antenuptial agreement. In this blog post, we'll explore the concept of antenuptial agreements in Kenya, why they're important, and how they can provide peace of mind in the event of a divorce.

What is an Antenuptial Agreement?

An antenuptial agreement, often referred to as a prenuptial agreement or prenup, is a legally binding contract entered into by two individuals before they get married. Its primary purpose is to establish the financial rights and obligations of each spouse in the event of a divorce or separation. In Kenya, these agreements are governed by the Matrimonial Property Act, which provides a legal framework for property rights in marriage.

Why Consider an Antenuptial Agreement in Kenya?

1. Protecting Individual Assets: One of the most common reasons people opt for antenuptial agreements in Kenya is to protect their individual assets acquired before the marriage. Without a prenup, these assets may become subject to division during divorce proceedings.
2. Clarifying Financial Responsibilities: Antenuptial agreements can outline the financial responsibilities of each spouse during the marriage, such as who pays for specific expenses or how assets are jointly or separately managed.
3. Safeguarding Family Interests: If you have children from a previous marriage or family members who rely on your financial support, an antenuptial agreement can ensure that your assets are preserved for their benefit.
4. Minimizing Conflict: Divorce proceedings can be emotionally charged, and disputes over assets can escalate quickly. A well-drafted prenup can help minimize conflicts and streamline the divorce process.
5. Business Protection: If you own a business or have a significant stake in one, an antenuptial agreement can protect your business interests by preventing your spouse from acquiring a share in the event of a divorce.

How to Create an Antenuptial Agreement in Kenya

Creating a legally binding antenuptial agreement in Kenya involves several key steps:

1. Consult with Legal Professionals: It's crucial to consult with experienced lawyers who specialize in family and matrimonial law. They can help you draft an agreement that complies with Kenyan legal requirements.
2. Full Disclosure: Both parties must provide full and honest disclosure of their financial assets and liabilities. Transparency is essential to the validity of the agreement.
3. Negotiation and Drafting: Work with your lawyers to negotiate and draft the terms of the agreement. These terms should address the division of assets, spousal support, and any other financial matters you wish to include.
4. Independent Legal Advice: Each party should seek independent legal advice to ensure they fully understand the implications of the agreement. This helps prevent any future claims of coercion or duress.
5. Registration: In Kenya, antenuptial agreements must be registered at the Registrar of Documents for them to be enforceable.

Conclusion

While discussing an antenuptial agreement with your partner may seem unromantic, it's a practical step to protect your financial interests and reduce the potential for disputes in the unfortunate event of a divorce. In Kenya, antenuptial agreements offer couples a legal framework to define their financial rights and responsibilities, promoting transparency and peace of mind as they embark on the journey of marriage. Consulting with experienced legal professionals is crucial to creating a fair and legally sound agreement that benefits both parties involved.

Disclaimer!

The provision of general advice in this document does not create an advocate-client relationship with any reader. This article's information, content, and material are provided solely for general informational purposes. Readers of this article should contact us on 0733610961 or email at info@wjmaxwell.co.ke if they need legal advice on any specific legal issue.

Introduction:
The Children's Court in Kenya is a specialized legal institution designed to handle cases related to children, ensuring their welfare and protection. Filing a case in the Children's Court involves a specific set of procedures and requirements. This article provides a comprehensive guide to help individuals navigate the process.

Understand the Jurisdiction of the Children's Court:
Before filing a case, it is crucial to determine whether the Children's Court has jurisdiction over the matter. The Children's Court in Kenya deals with cases involving minors, including child protection, adoption, custody, maintenance, and juvenile justice matters.

Identify the Type of Case:
Different types of cases fall under the jurisdiction of the Children's Court. It could be a child protection case, adoption proceedings, or a matter related to custody and maintenance. Identifying the specific type of case is essential for proper documentation and legal proceedings.

Gather Necessary Documents:
Collect all relevant documents that support your case. These may include birth certificates, medical records, school reports, and any other evidence relevant to the matter. Proper documentation strengthens your case and provides the court with essential information.

Legal Representation:
While legal representation is not mandatory in the Children's Court, it is advisable to seek the assistance of a qualified lawyer. An advocate can guide you through the legal process, help you understand your rights, and ensure that all necessary paperwork is properly prepared.

Visit the Children's Court Registry:
Head to the Children's Court Registry to obtain the required forms for filing your case. The court registry will provide assistance and guidance on filling out the forms correctly. Make sure to double-check all information to avoid delays in processing.

Complete the Required Forms:
Carefully fill out all necessary forms, providing accurate and detailed information. Be thorough in explaining your case, including any supporting evidence or documentation. Ensure that you have included all required signatures.

File the Case:
Once the forms are completed, submit them to the Children's Court Registry. There may be a filing fee, so be prepared to pay the required amount. The court will issue a file number and assign a hearing date for your case.

Serve Notice to the Other Party:
If your case involves another party, ensure that they are served with a notice of the court proceedings. This ensures that all involved parties are aware of the case and can prepare accordingly.

Attend Court Hearings:
Attend all scheduled court hearings promptly. Failure to appear can negatively impact your case. Be prepared to present your arguments, evidence, and any witnesses who can support your case.

Follow Court Orders:
Comply with any court orders issued during the proceedings. Failure to adhere to court directives may result in legal consequences.

Conclusion:
Filing a case in the Children's Court in Kenya is a structured process that involves careful preparation and adherence to legal procedures. Seeking legal advice and ensuring all necessary documentation is in order will contribute to a smoother and more successful resolution of the case. The ultimate goal of the Children's Court is to safeguard the well-being and rights of children, making it a crucial institution for child-related legal matters in Kenya.

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Disclaimer!

The provision of general advice in this document does not create an advocate-client relationship with any reader. This article's information, content, and material are provided solely for general informational purposes. Readers of this article should contact us on 0733610961 or email at info@wjmaxwell.co.ke if they need legal advice on any specific legal issue.

When it comes to determining child custody, the law prioritizes parental care as the primary basis for awarding custody in the event of a dispute. It acknowledges that a child has an inherent right to live with their parents. However, if a court determines that such a living arrangement is not in the child's best interest, it may order a separation.

In such cases, the court ensures that the child receives the best possible alternative care, with a preference for family-based options. This may include placement with the mother, father, older siblings, or other relatives.

If a court orders the separation of siblings from their mother, it mandates that the siblings be placed together under care and protection, unless compelling reasons justify their separation.

Children who are separated from one or both parents have the right to maintain regular personal contact and relationships with the parent(s) they are separated from, unless the court deems such contact to be contrary to the child's best interests.

Right to Social Security

In instances where parents are unable to support their child, the child is entitled to social security as guaranteed by Article 43(3) of the Constitution. This Article provides that “the State shall provide appropriate social security to persons who are unable to support themselves and their dependents”. This provision ensures that the government provides appropriate social security for individuals who cannot support themselves and their dependents.

"Social security" in regards to Children Matters includes alternative care services, and in particular— adoption, foster care, kinship care, institutional care, guardianship, supported independent living, supported child-headed households, kafaalah, aftercare, among others.

Objectives of Alternative Care

The primary objectives of alternative care are to:

1. Protect the child from abuse, violence, or exploitation.
2. Provide parental care and protection that aligns with the child's best interests and well-being.
3. Ensure a stable, loving, and protective home environment, aiming for permanency as a long-term goal.
4. Place the child as close as possible to their usual place of residence.

It is crucial to note that factors such as poverty, disability, or the need for education should not be the sole reasons for removing a child from their family and placing them in alternative care. Such removal should be a temporary measure and considered only as a last resort, with close monitoring.

Siblings should remain together during the removal and placement process, unless it is unsafe or not in their best interests. Alternative care placements may be initiated by the child, their parents, or other primary caregivers, such as grandparents or other relatives.

To support these efforts, the Cabinet Secretary responsible for finance established the Child Welfare Fund under the Public Finance Management Act (2012) (Cap. 412A). This fund will facilitate the realization of the rights guaranteed by Article 43(3) of the Constitution by covering reasonable expenses related to alternative care and other social security programs aimed at ensuring the child's welfare.

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Disclaimer: This is not legal advice and should not be relied upon as such.

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