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.