One of the key aspirations of the Constitution of Kenya 2010 was to guarantee equal protection of property rights regardless of gender or any other status, and protection against arbitrary deprivation of property.
This would ideally moderate some of the most distressing situations regarding the struggles women face in securing their property, such as widows being evicted from their matrimonial homes by in-laws, lack of documented legal claim to assets acquired during marriage to present during a divorce proceeding, structuring of the ownership deed, presumptions that the husband inherits their identity and property rights upon marriage, and non-monetary contributions being disregarded.
Despite the significant legal advancements, the reality for many women, especially after marriage, is far from ideal. In actuality, the ideal is not always achieved despite the law’s noble intentions. Knowledge gaps, deeply ingrained beliefs, and societal attitudes persist in undermining women’s property rights and overshadowing statutory protections making it challenging for women to enforce their legal rights effectively.
Generations of women continue to experience and express limited access to and control over property. Married women can therefore be empowered to assert and protect their legal claims to property by having information about how the laws already in place relate to property rights.
The following summarized nuggets aim to expand understanding that will enable women to confidently engage in property transactions after marriage and ensure equitable distribution of assets in the unfortunate event of divorce:
Registering Solely Owned Property as Jointly Owned
There is a legal procedure for a non-owner spouse to acquire joint ownership of property. Under Regulation 23(1) of the Land Registration (General) Regulations, 2017 a registered proprietor can apply to the Registrar to include their spouse’s name in the register.
The sole registered owner must sign a transfer instrument adding the other spouse as a joint owner, which is then registered at the Land Registry. This would effectively confer ownership.
Additionally, a spouse may request inclusion in the register under Regulation 23(2). However, this entry does not confer ownership status but rather acknowledges the spouse’s interest in the property.
Joint Tenancy versus tenancy in common
Choosing the right co-ownership structure is important as it determines the rights, responsibilities and inheritance of property. By default, if an instrument of transfer does not specify the nature of co-ownership, it is presumed to be tenancy in common in equal shares unless stated otherwise in any written law.
In joint tenancy, the right of survivorship applies, meaning the surviving joint owners automatically inherit a deceased owner’s share without the need for probate proceedings provided the surviving joint owners formally request the removal of the deceased’s name from the land register.
It is also important to note that even when property is acquired in joint names, the presumption of equal beneficial interest can be rebutted.
In common tenancy, each owner holds a separate and distinct share of the property. Upon the death of one owner, their share is transferred to their beneficiaries or distributed according to their Will. This process may require probate proceedings, which can be both time-consuming and costly.
Steps to Take When Conducting Land Due Diligence and Conveyancing
Prenuptial agreements
Kenyan law recognizes prenuptial agreements under the Matrimonial Property Act, 2013. These agreements allow couples to determine how their property will be owned, managed, and divided in the event of a divorce or separation.
For a prenup to be enforceable, it must meet all the requirements of a valid contract. Prenuptial agreements can be a useful legal tool for women to predefine and protect their property rights.
Understanding spousal consent in property rights
The Matrimonial Property Act, 2013 requires that a matrimonial home cannot be charged or leased without the written and informed consent of both spouses. Additionally, any interest in any matrimonial property cannot be alienated during the subsistence of a monogamous marriage without the consent of both spouses.
When applied appropriately, spousal consent can safeguard the interests of a spouse ensuring transparency and mutual consent in managing the property.
However, there are circumstances where, due to power imbalances in some relationships, the requirement for spousal consent has been used to control or limit a woman’s ability to manage or dispose of property.
Entitlement to a 50-50 distribution of matrimonial property
The Supreme Court has upheld the requirement that proof of direct or indirect contribution be made before a spouse is granted a share in matrimonial property.
Taking this into consideration, divorce proceedings can be viewed as an audit, which means that to ensure a smooth process, one would need to document every contribution they have made.
Many women have faced challenges in proving indirect contributions to matrimonial property, which are often intangible, and this has a substantial impact on their rights to property allocation in divorce.
Purchasing freehold property with a non-citizen spouse
Freehold land is preferred for its absolute ownership, but Kenyan law prohibits non-citizens from owning freehold land, limiting them to leasehold tenure not exceeding 99 years.
If a non-citizen spouse is involved in acquiring freehold property, the applicable law would need to balance the right of the Kenyan citizen to own freehold property with the restriction on the non-citizen who is limited to owning leasehold property. Ideally, the freehold interest may need to be converted to leasehold to comply with the law.
Conclusion
Property rights within marriage are a terrain where legal principles intersect with deeply personal experiences. While the law provides a framework for navigating these rights, it is the nuances of individual circumstances that truly shape outcomes.
Every marriage carries its unique dynamics, and what may be a straightforward legal solution for one couple could prove inadequate for another.
Moreover, the universal application of these legal principles is not always possible. In communities governed by religious laws such as Islamic marriages, for example, different rules apply reflecting the diversity of marital property rights in Kenya.
Nonetheless, insights like those shared in this article can go a long way in empowering women to make informed decisions.
Lydia Owuor is a partner at Cliffe Dekker Hofmeyr (CDH) Kenya.
