The Matrimonial Property Act 2013, together with Article 45 of the Constitution, fundamentally reformed property rights between spouses in Kenya. For the first time, Kenyan law expressly recognised that both monetary and non-monetary contributions entitle a spouse to a share in matrimonial property. This article explains what this means in practice.
What is Matrimonial Property?
Under the Act, matrimonial property includes: matrimonial home(s), household goods, any other property owned jointly by the spouses, and property acquired during the marriage using matrimonial property or the proceeds of matrimonial property.
Contribution — The Core Concept
The Act establishes that ownership of matrimonial property is determined by each spouse's contribution to its acquisition. Contribution is defined broadly to include both monetary contributions (income, cash payments) and non-monetary contributions (domestic work, childcare, farm work, management of household affairs). This is a significant departure from the previous position which largely ignored non-monetary contribution.
Presumption of Equal Shares
Where spouses contribute equally (whether monetarily or non-monetarily), they share the property equally. Courts assess the respective contributions when determining shares on divorce or separation.
Premarital and Inherited Property
Property owned before marriage and property acquired during marriage by inheritance or gift is not automatically matrimonial property — it remains the separate property of the owning spouse. However, if the other spouse contributes to its improvement or maintenance, they may acquire an interest.
Prenuptial and Postnuptial Agreements
Spouses may agree in writing, before or during marriage, on the ownership of property during and after the marriage. Such agreements are enforceable unless procured by undue influence, fraud or misrepresentation. A properly drafted prenuptial agreement can protect pre-marital wealth and business interests.