Chief Justice Martha Koome has issued new directions and rules on how disputes on ownership of matrimonial property should be handled in a bid to expedite cases and unlock withheld assets back into the economy.
Disputes on matrimonial assets will now be heard on a day-by-day basis.
Litigants can also serve court summonses and notices of appearance via phone-enabled messaging applications such as WhatsApp, Facebook Messenger, Twitter, WeChat, Telegram, Snapchat and Instagram.
“Summonses and other court processes may, with leave of the court, be served on a party to the proceeding by registered courier services, electronic mail services (E-mail) or mobile-enabled messaging applications,” read the new rules.
The rules allow spouses to institute civil proceedings claiming any right or relief concerning matrimonial property during the subsistence of the marriage or at any time after its dissolution by a decree of a court given in the final determination of divorce proceedings.
However, for divorcees, the application for determination or declaration of any right or claim over the matrimonial property should be filed within 12 months from the date on which the decree absolute is given. But the court may extend the time.
To expedite the determination of disputes, the rules indicate that the hearing will be on a day-to-day basis.
Where a case is set for hearing, it will not be adjourned unless the party applying for postponement satisfies the court that it is justified.
Alternative dispute resolution
The rules also intend to entrench the use of the alternative dispute resolution mechanism in resolving matrimonial conflicts.
The court may at any stage in the proceedings, but before final orders in the determination of the summons, refer any or all of the issues in dispute to mediation.
This will be under the practice and procedure for the time being in force for the administration of court-annexed mediation.
“Any mediated settlement reached between the parties in respect of all or any of the issues in dispute shall constitute part of the record in the proceedings and adopted as an order of the court,” the rules state.
If the parties fail to agree on any of the issues referred for an amicable settlement, the court will proceed to hear and determine the remaining issues. Upon hearing the dispute, the court may make various determinations, including issuing an order for the sale of the property or any part of it, and the division, vesting, or settlement of the proceeds of the sale.
In the case of property owned by spouses jointly, the court may make an order vesting the property in them in common in such shares as it considers just, or an order vesting the property, or any part of it, in either spouse.
The court may also make an occupation order granting a spouse personal rights to the property, and to the exclusion of the other spouse, to occupy the matrimonial home or any other premises forming part of the matrimonial property.
But the rules provide that the court, in making the order, should have regard for the interest of any minor or dependent children of the marriage.
In addition, the new rules state that the court may also make an order vesting in either spouse the tenancy of any dwelling house, provided that the court will not make an order unless the spouse against whom the order is made is, or was, the sole tenant of the house.
This will also apply in instances where a spouse was a tenant of a property held jointly or in common with the applicant. BY DAILY NATION