Are you cohabiting with your partner and have jointly invested in property? If yes, you may be in for a rude shock should the relationship hit the rocks.
In Kenya, a cohabitee has no right to lay claim on any property they may have jointly acquired should they separate.
The new marriage and matrimonial property laws exclude cohabitees from benefits available to spouses.
The Matrimonial Property Act, 2013 protects spouses’ rights to monetary and non-monetary contributions during marriage.
It clearly defines a spouse as a wife or husband, which is further emphasised in the Marriage Act (2014).
The legal constraints of cohabiting became clearer in 2017 when the Court of Appeal ruled that “benefits granted to a lawful marriage are not available to cohabitees who are deemed never to have been married at all”.
They observed that “nihil fit ex nihilo (out of nothing, nothing comes)”, when making the decision over a property sharing between a Kenyan man and Slovenian woman.
In the Civil Appeal No. 332 of 2014, the woman said they married in Yugoslavia in 1964 after confirming that her Kenyan partner was single. He returned to Kenya in 1968 and she later joined him.
Fifteen years into her supposed marriage, she realised that the ‘husband’ was indeed in a monogamous marriage and thus had no capacity to be married to her.
For this reason, she sought nullification of the marriage at the Kenyan High Court in 1979. It was nullified in 1980.
The Slovenian later filed for division of property at the High Court. On August 13, 2014, Judge Nyamweya J made a ruling awarding the Slovenian 95 per cent of one property and 50 per cent for another that they jointly acquired and registered while the Kenyan received the remainder.
The ‘husband’ challenged the decision at the Court of Appeal. The two were running a joint account from which they built their wealth.
In concluding the dispute, the appellate judges did not apportion either any stake in the claimed property and directed them to keep what they owned.
“The parties set out to live as husband and wife … all they did together while labouring under that mistake,” the judges said in the July 28, 2017 ruling.
Experts say the law is very protective of legally married women, with cohabitees lacking legal backing to seek a remedy.
Before the new marriage laws came into effect in 2014, there was hope for cohabitees as one would file for a presumption of marriage as a prerequisite to claiming share of the co-owned property, said Ms Josephine Mong’are, chairperson FIDA-Kenya, a federation of women lawyers.
“But under the new marriage law, all marriages have to be registered. And so now there must be an establishment of a marriage or divorce before you can trigger the Matrimonial Property Act to file for sharing property,” she said.
Mr Cyprian Nyamwamu, a gender expert and director of Future of Kenya Foundation, added: “We went back to the situation that come-we-stay marriages are not recognised in Kenya, even if they lasted for many years.”
The experts called for more sensitisation on the new marriage laws.
“As it is now, people don’t know about the new marriage laws. How can people make decisions when they don’t have the right information. This information needs to reach people rightly,” said Ms Jane Godia, a gender and media specialist.
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