The landmark ruling by Supreme Court on Friday, January 27, set the precedence on a long-standing debate on whether a come-we-stay form of marriage is recognised by law.
In the ruling delivered by a five-judge bench, the court stated that one will have to prove contribution towards the accumulation of wealth to rightfully claim a share in an eventuality of a divorce.
This has since elicited debate on the pros and cons for married couples to purchase properties as joint owners or individuals.
According to clause 49 of the Matrimonial Property Act of 2013, subsection 14; matrimonial property is acquired during the marriage in two instances; the first instance is one in which the property is one name; hence it is presumed that the assets are held in trust for the other spouse.
The other instance occurs when the property is jointly owned hence the law presumes that the beneficial interests in the matrimonial shares are equal.
Speaking to Kenyans.co.ke, Jane Odiya, an advocate of the High Court who specializes in family law, affirmed that the ideal situation is one in which you register and place it under both names.
She, however, noted that some situations especially in the African context, depict the male as the head of the family and hence the property is written in his name.
"Things get worse when this couple parts way. Many people will stay in a marriage because they jointly share properties together," Odiya stated.
The lawyer examined the scenario in specific parameters:
Separation
Lawyer Odiya pointed out that a couple that sought to be separated could either be fulfilled under the Marriage Act or through a divorce.
"There is separation under the Marriage Act whereby they don't want to live together. This type of situation is however dealt with by the Matrimonial Property Court of the High Court. Take note that the court cannot divide until the divorce is granted," she pointed out.
She noted that for a customary marriage, the law requires the couple to register despite some undergoing the traditional customs such as paying dowry.
She added that the marriage will not be recognised under the law if they don't register at Sheria House- and hence property bought will be considered to be individually owned and not matrimonial property.
Instance when a spouse dies
According to the family lawyer, the heir of the property belonging to the deceased falls on the immediate family.
"When a husband dies, the heir is the immediate family. The wife and children are on the same level but the wife takes a slightly superior position. The other family members such as a sister or a brother will come in as a dependant but not as an heir," she stated.
A past article quoted by The Standard indicated that joint ownership is ideal as it prevents legal tussles as the spouse becomes the legal owner of the entitled property.
Situation of debt incurred by one spouse
The family lawyer intimated that when one is filling in the succession form, the debts incurred by the deceased will be taken into account and will not be passed on to the spouse.
However, in the situation whereby one spouse dies and the survivor is the debtor, the creditors will have legal access to the property that was co-owned.
