Prominent lawyer Danstan Omari has offered crucial insights into the complexities of matrimonial property division in Kenya.
Speaking from the Family Division of the High Court, Omari detailed the legal framework governing how assets acquired during a marriage are shared upon divorce.
His address clarified key aspects, particularly emphasising that only legally recognised spouses possess rights to such properties.
The Foundation: A Legally Recognised Marriage
According to the prominent lawyer, for any property dispute to be heard in court, a foundational requirement is a legally certified marriage.
Omari explained that the Kenyan Constitution defines marriage as a union between a man and a woman. Crucially, the Marriage Act stipulates that a marriage certificate is mandatory.
“If you have no marriage certificate, you are wasting your time,” Omari stated, emphasizing the legal necessity.
He further explained that five types of marriages are legally recognised: Christian, traditional African, Hindu, Muslim, and other types, all requiring a certificate.
Those married under African customary law who lack a certificate are advised to obtain one to qualify for matrimonial property division.
What Counts as Matrimonial Property?
Matrimonial property is specifically defined as any asset acquired by a husband and wife from the wedding day until the date of their divorce.
This means that property owned by either partner before the marriage commenced does not fall under this category. For instance, if a wife acquired property before marrying her husband, or vice versa, it is not subject to division as matrimonial property.
Who Is Excluded?
Lawyer Omari made it explicitly clear that the right to matrimonial property division is strictly reserved for legally married individuals.
“Concubines, those who come to stay, those women kept as side chicks do not qualify to be in the division of matrimonial property,” he asserted.
Only a married woman who has undergone a legal divorce can claim a share of matrimonial property.
The Path to Division: Divorce Must Precede
Omari clarified that before any discussion on property division can take place, the court insists that a formal divorce process must be completed. This involves filing for divorce, seeing it through, and being granted a “divorce absolute”.
He explained that this process includes an initial “divorce nisi,” a temporary divorce valid for 30 days, which must then be confirmed.
Once the divorce is confirmed in the magistrate’s court, only then can a case for matrimonial property division be filed at the Family Division of the High Court.
Protecting the Family Home
A unique protection exists for the matrimonial home – the place where children are born and live. The law aims to prevent children from becoming destitute due to property division.
Omari explained that 20% of the value of the matrimonial property, attributed to the person with custody (typically the mother), is specifically allocated for the matrimonial home. This portion is not given to the mother for her ownership, but rather to hold in trust for the children.
It’s important to note that the High Court’s family division does not handle matters of child maintenance or schooling, which fall under the Children’s Act.
by moses sagwe
