Hello Wakili,
I have earned property with my husband for about 25 years. In the initial years, every property was registered under his name, due to patriarchy of course. I didn’t find anything wrong with that after all, everything was ours and our children. Recently I discovered he has fathered two small children with another woman. I fear my sweat may end up being shared with those children born out of wedlock. Is there anything I can do to prevent this? My husband may not see anything a problem, after all those are his children too.
Dear worried woman,
Responding to your question requires certain assumptions since the circumstances under which your husband’s property can be shared out are not clear. In anticipation, three scenarios emerge where matrimonial property may become a subject of contestation and litigation. First scenario, is where you and him decide to terminate this union, through a divorce, making the property a point of common interest and therefore disputable. Should this be the case, the Matrimonial property Act comes into play. At this point three legal tools may apply. First is the provision of Article 45 Clause (3) of the Constitution, which states that parties to a marriage are entitled to equal rights at its formation, subsistence and dissolution.
Secondly is the interpretation of this Article, following the recent decision by the Supreme Court in Petition No. 11 of 2020, in which Joseph Ombogi Ogentoto sought remedy to overturn a Court of Appeal decision, that had awarded his ex-wife 50% sharing of matrimonial property. Thirdly is the definition of what constitutes matrimonial property as provided for in Section 6 clause (1), paragraphs (a) to (c).
The Matrimonial Property Act of 2013 in Section 6 clause (1) paragraph (a) to (c), describes matrimonial property to mean and include matrimonial home or homes, household goods and effects in the homes or homes, and any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. This would be the beginning point if the matter is canvassed before the family court in Kenya. A few cases, and attendant decisions, can help us understand what preparation couples in situations similar to yours need, for such eventualities.
The Supreme Court decision in the matter of Joseph Ombogi Ogentoto versus his ex-wife, Martha Bosibori Ogentoto, guides couples on what to do preparatorily in order to safeguard their interests in matrimonial property, should a dispute requiring redistribution arise. This judgement explained and provided the application of Article 45 clause (1) and (3). It especially contextualised the term equality as intended in the constitution. The court held that equality of spouses does not involve the redistribution of property rights at the dissolution of marriage. In emphasis, the Supreme Court explained, it’s not in the powers of any court to vary existing property rights and take away what belongs to one spouse and award half of it to another spouse, who, in the true sense has not contributed to the acquisition or improvement of the matrimonial property. Being married was not considered reason enough to guarantee equal sharing of the matrimonial property. This position, is a re-enactment of the views of the court in the matter of Peter Mburu Echaria versus Priscilla Njeri Echaria, when it stated, “…where the disputed property is not registered in the joint names of the parties to the marriage, but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective financial contributions, either directly or indirectly in the acquisition of the property…”
From this reading, it is important for each spouse to keep evidence, and document actions that can demonstrate contribution to either acquisition or improvement of matrimonial property. Most couples avoid this line of thought because of the impression, that trust is taking beating.
The second scenario, is where the estate of your husband is shared upon his demise. At this point the Law of Succession Act kicks into play. The varied application is dependent on whether there exists a will by him. Should there be a will, then an opportunity for you to contest the validity is availed. To invalidate, you may cite reasons such as allocation of what you consider your property to these children gotten out of the wedlock. If there is no will, the estate will be subjected to intestate proceedings, where the court will determine what property is allocated to the aforementioned children, that only belong to him. Remember, every child, irrespective of their circumstances is entitled to their parents’ inheritance. The Law of Succession (Amendment) Act 2021, identifies beneficiaries to include spouse(s) and the children of the deceased, as dependants, regardless of whether they were being maintained by the deceased or not.
The third scenario, is where you and your husband get onto a sober and honest conversation on how to share out the family property. This kind of conversation is helpful, because it reduces the likely disputes and misunderstandings which often arise when property is being distributed as an estate of a deceased person. In such an arrangement you can then state your stand on all the properties you consider are fundamentally in place because of your direct or indirect efforts. BY DAILY NATION