Matrimonial Property Act 2013 - as Plain Text by MWakili

SPECIAL ISSUE Kenya Gazette Supplement No.

183 (Acts No.

49) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2013 NAIROBI, 31st December, 2013 CONTENT Act PAGE The Matrimonial Property Act, 2013 1413 'OR LAW REPORTING WED 31 JAN 2014 ;3 - 00100 x .N YA 2712694 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 1413 THE MATRIMONIAL PROPERTY ACT, 2013 (No.

49 of 2013 Date of Assent: 24th December, 2013 Date of Commencement: 16th January, 2014 ARRANGEMENTS OF SECTIONS Section PART I PRELIMINARY 1Short title.

2Interpretation.

PART II GENERAL PROVISIONS 3Application of Islamic law.

4Equal status of spouses.

5Rights and liabilities of a person.

PART III MATRIMONIAL PROPERTY 6Meaning of matrimonial property.

7Ownership of matrimonial property.

8Property rights in polygamous marriages.

9Acquisition of interest in property by contribution.

10Spousal liability.

11Consideration of customary law principles.

12Special provisions relating to matrimonial property.

PART IV SEPARATE PROPERTY 13Separate property of spouses.

14Presumptions as to property acquired during marriage.

15Gifts between spouses.

16No liability for antecedent debts of a spouse.

PART V JURISDICTION AND PROCEDURE 17Action for declaration of rights to property.

18Provisions on delegated powers.

19Cessation of application of Married Women Property Act.

1414 Matrimonial Property No.

49 2013 THE MATRIMONIAL PROPERTY ACT, 2013 AN ACT of Parliament to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes ENACTED by the Parliament of Kenya as follows PART I PRELIMINARY 1.

This Act may be cited as the Matrimonial Property Short title.

Act, 2013.

2.

In this Act, unless the context otherwise requires Interpretation.

"contribution" means monetary and non-monetary contribution and includes (a) domestic work and management of the matrimonial home; (b) child care; (c) companionship; (d) management of family business or property; and (e) farm work; "family business" means any business which (a) is run for the benefit of the family by both spouses or either spouse; and (b) generates income or other resources wholly or part of which are for the benefit of the family; "matrimonial home" means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property; "matrimonial property" has the meaning assigned to it in section 6; "spouse" means a husband or a wife.

PART IIGENERAL PROVISIONS 3.

A person who professes the Islamic faith may be Application of Islamic law.

governed by Islamic law in all matters relating to matrimonial property.

1415 2013 Matrimonial Property No.

49 4.

Despite any other law, a married woman has the same Equal status of rights as a married man spouses.

(a) to acquire, administer, hold, control, use and dispose of property whether movable or immovable; (b) to enter into a contract; and (c) to sue and be sued in her own name.

5.

Subject to section 6, the interest of any person in any Rights and immovable or movable property acquired or inherited before liabilities of a marriage shall not form part of the matrimonial property person.

PART III MATRIMONIAL PROPERTY 6.

(1) For the purposes of this Act, matrimonial property Meaning of means matrimonial property.

(a) the matrimonial home or homes; (b) househoJd goods and effects in the matrimonial home or homes; or (c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

(2) Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property.

(3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.

(4) A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

7.

Subject to section 6(3), ownership of matrimonial Ownership of property vests in the spouses according to the contribution of matrimonial either spouse towards its acquisition, and shall be divided property.

between the spouses if they divorce or their marriage is otherwise dissolved.

8.

(1) If the parties in a polygamous marriage divorce or Property rights in a polygamous marriage is otherwise dissolved, the polygamous marriages.

1416 No.

49 Matrimonial Property 2013 (a) matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife; and (b) matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the man and each of the wives.

(2) Despite subsection (1)(b), where it is clear by agreement of the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.

Acquisition of 9.

Where one spouse acquires property before or during interest in the marriage and the property acquired during the marriage does property by not become matrimonial property, but the other spouse makes a contribution.

contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property equal to the contribution made.

Spousal liability.

10.

(1) Any liability incurred by a spouse before the marriage and relating to the property shall, after marriage, remain the liability of the spouse who incurred it.

(2) Despite subsection (1), any liability that was reasonably and justifiably incurred shall, if the property becomes matrimonial property be equally shared by the spouses, unless they otherwise agree.

(3) Parties to a marriage shall share equally any (a) liability incurred during the subsistence of the marriage for the benefit of the marriage; or (b) reasonable and justifiable expense incurred for the benefit of the marriage.

Consideration of 11.

During the division of matrimonial property between customary law and among spouses, the customary law of the communities in principles.

question shall, subject to the values and principles of the Constitution, be taken into account including (a) the customary law relating to divorce or dissolution of marriage; 1417 2013 Matrimonial Property No.

49 (b) the principle of protection of rights of future generations to community and ancestral land as provided for under Article 63 of the Constitution; and (c) the principles relating to access and utilization of ancestral land and the cultural home by a wife or wives or former wife or wives.

12.

(1) An estate or interest in any matrimonial property Special provisions shall not, during the subsistence of a monogamous marriage and relating to without the consent of both spouses, be alienated in any form, matrimonial property.

whether by way of sale, gift, lease, mortgage or otherwise.

(2) A spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any of the man's wives, have an interest in matrimonial property capable of protection ty / caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.

(3) A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.

(4) Subject to subsection (3), a spouse shall not be evicted from the matrimonial home by any person except (a) on the sale of any estate or interest in the matrimonial home in execution of a decree; (b) by a trustee in bankruptcy; or (c) by a mortgagee or chargee in exercise of a power of sale or other remedy given under any law.

(5) The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses.

PART IV SEPARATE PROPERTY 13.

Subject to this Act and any agreement between the Separate property spouses before the marriage, marriage does not affect the of spouses.

ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property.

14.

Where matrimonial property is acquired during Presumptions as marriage to property acquired during marriage.

1418 No.

49 Matrimonial Property 2013 (a) in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and (b) in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.

Gifts between 15.

Where a spouse gives any property to the other spouse spouses.

as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient.

No liability for 16.

A spouse is not liable, solely by reason of marriage, for antecedent debts any personal debt contracted by the other spouse prior to their of a spouse.

marriage.

PART V JURISDICTION AND PROCEDURE Action for 17.

(1) A person may apply to a court for a declaration of declaration of rights to any property that is contested between that person and a rights to property.

spouse or a former spouse of the person.

(2) An application under subsection (1) (a) shall be made in accordance with such procedure as may be prescribed; (b) may be made as part of a petition in a matrimonial cause; and (c) may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes.

Provisions on 18.

(1) The Rules committee established under the Civil delegated powers Procedure Act shall make rules to regulate any matter of practice Cap 21.

or procedure under this Act.

(2) Without prejudice to the generality of subsection (1), such rules may prescribe (a) the procedure to be followed and the forms to be used under this Act; (b) the time within which documents are to be filed and served under this Act.

1419 2013 Matrimonial Property No.

49 The Married Women Property Act shall cease to extend Cessation of 19.

application of to or apply in Kenya.

Married Women Property Act.

.