The Matrimonial Property Rules, 2022 (“the Rules”) were published by the Rules Committee in Legal Notice No. 137 on 29th July, 2022, to further advance the Matrimonial Property Act, 2013 (“the Act”).
The Act provides for the rights of spouses with respect to their matrimonial property and it sets out the parameters for division of matrimonial property in the case of the dissolution of that marriage. The Act is founded on Article 45 of the Constitution of Kenya 2010, which recognizes the family as the basic unit of the society that enjoys protection by the State. This Article gives a right to every adult to marry a person of the opposite sex as long as there is free consent and will of the parties. Parties to such a marriage are entitled to equal rights at the time of their marriage, during their marriage and at the dissolution of their marriage. Unlike the Married Women's Property Act, which was promulgated during the colonial era, the Act recognizes that married women have the same rights as married men. The Act provides a clear definition of matrimonial property, the spouses’ rights attached to it including those of spouses in a polygamous marriage, and also includes a definition on property that does not form matrimonial property, among other provisions.
The sole objective of the Rules is to facilitate the fair and just resolution of disputes relating to matrimonial property by providing direction on the manner in which courts ought to determine such disputes in line with the rights outlined in the Act. The Rules are aimed at creating an expeditious means of filing and resolving such disputes.
B. SALIENT FEATURES OF THE MATRIMONIAL PROPERTY RULES
The salient features of the Rules include:
- Persons eligible to institute Matrimonial property claims
A spouse , any person against whom a spouse has made a conflicting claim in respect of matrimonial property, trustee in bankruptcy, an executor under a will or other testamentary grant, an administrator or a personal representative of the estate of a spouse seeking an order or declaration relating to the status, ownership, vesting, or possession of any specific property by, or for the beneficial interest of, a spouse or former spouse, may institute civil proceedings at the High Court claiming any right or relief in relation to matrimonial property at any time after the dissolution of marriage or during the subsistence of a marriage in cases of spouses.
- Eligible Property
In case the property in question is immoveable property, the applicant is required to state the title/ownership details, particularly in relation to joint ownership i.e., joint tenants or tenants -in- common, particulars of any encumbrances on the property and whether the title to the property is registered or unregistered.
- Service of court documents and Court processes
Service of court documents in relation to claims of right in matrimonial property is done in person save for where the recipient has appointed an agent or advocate with instructions to accept service on their behalf. Service may also be done by a registered courier service, electronic mail services or mobile- enabled messaging applications. The Rules also provide for service on recipients that are out of Kenya.
- Opposition to Matrimonial Property claims of right or relief
Any party referred to in (1) above, opposing the claim is allowed to file their grounds of opposition to such claim with proof within 15 days from the date of appearance before the court.
In every claim, the court makes and gives orders that it deems fit and may refer issues in dispute to mediation in accordance with practice and procedure in force for the time being for the court-annexed mediation.
- Relief given by the court in Matrimonial Property Claims
Once the court has heard all the parties to the claim, it may make any of the following orders:
- Declare a sale of the Matrimonial Property or a part of it and for the division of the proceeds of the sale;
- If the property is jointly owned by the spouses, the court may vest it in them in common in such shares as the court deems just;
- Declare an order vesting the matrimonial property or any part therefore in either of the spouses;
- Declare an order for partition of the property in dispute;
- If the property is owned by one spouse, the court may declare an order vesting ownership on the spouses jointly or in common in shares that the court considers just and vice versa;
- Declare an order for payment of a sum of money by one spouse to the other;
- Declare an order for the transfer, lease, licence or tenancy of an interest on the land or the land itself;
- Declare an order for occupation by a spouse for such a period as the court deems fit;
- Declare an order vesting on either spouse the tenancy of a dwelling house and the use of the furniture and other household appliance/effects/ in cases where only one spouse was the sole tenant;
- Declare an order vesting an insurance/assurance policy or rights and obligations under a hire purchase agreement or lease in either spouse notwithstanding anything in the respective agreements;
- Declare an order for the transfer of shares or stock or mortgages, charges, debentures or other securities or documents of title or for the transfer of rights or obligations under a contract or instrument; and
- Declare an order varying the terms of any trust or settlement other than a trust under a will or other testamentary disposition or such other orders that the court may deem fit and just.
Any party aggrieved by the orders of the court may apply for a review of the court’s judgement, decree or order to the same court that made the orders or appeal to a higher court.
The Rules have attempted to simplify the processes involved in determination of matrimonial property claims by courts by providing the requisite forms to be used in the proceedings. The Rules also allow the court to make such orders as to costs as may be deemed just in the various circumstances. These Rules will now apply to all the proceedings that were pending at the time of their coming into force though without prejudice to the validity of anything that had been done previously.
Article by Sheila Mutiga & Ann Yvonne Muriithi
Published on 6th October, 2022