Dispositions Over Matrimonial Property; A Reflection On Spousal Consent.


The Constitution of Kenya 2010 has heralded many changes in the legal sector. One of the most important imports of the Bill of Rights in the Constitution with regard to spouses is the right to equality and an entitlement to equal treatment and benefit of the law with regard to disposition of matrimonial property.Article 45(3) of the constitution provides that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of marriage”.

Currently, it is a legal requirement that for any disposition such as transfer, sale, charge grant, lease or even surrender of any property deemed to be matrimonial property to be valid there must be a spousal consent.

A spouse has been defined under section 2 of the marriage Act as husband or wife. This definition is in the context of a marriage/married person.Consent on the other hand can be defined as an approval, acceptance, endorsement, permission, agreementor authorization to do something.

Matrimonial property has been defined under the Land Registration Act and the Matrimonial Property Act as any property acquired during the subsistence of marriage by one or both spouses for the use of the family. Under the provisions of the Land Registration Act and the Matrimonial Property Act, there is a rebuttable presumption that spouses have equal rights over matrimonial property.

In the case of F.S – Vs – E. Z (2016) eKLR the court ruled that:-

“In the case of VWN V F.N., Nairobi Court of Appeal Civil Appeal No. 3 of 2014, the Court of Appeal distributed a matrimonial property in Karen at 70% and 30% and reversed a High Court decision to have the property shared equally.

It is important to note that there are certain past decisions which are of the view that matrimonial properties should be shared equally. Most of those decisions were made before the coming into force of the Matrimonial Property Act, 2013. In the case of MK V SK [2008] 1 KLR 204 where the Court of Appeal held that where a property is registered in the joint names of husband and wife, it means that each party owns an individual equal share in the property: Such decisions may not represent the current Kenyan status under Section 14 of the Matrimonial Property Act, there is a rebuttable presumption that there is an equal beneficial interest. This means that evidence can be adduced to rebut and defeat the presumption that the interest on the property is equal. It is not a fixed presumption. One spouse can buy a property and have it registered in the names of the other spouse. Whenever an issue of distribution arises, what would count will be the level of contribution by each party, whether monetary or non-monetary contribution.”

The Matrimonial Property Act settles the issue of holding of the matrimonial property by each of the spouses by providing that matrimonial property is deemed to be held in accordance to one’s contribution towards acquisition of the matrimonial property. It is important to note that contribution towards acquisition can be direct or indirect monetary contribution. Contribution under the Matrimonial Property Act has been recognized to include domestic work and management of the matrimonial home, child care, companionship, management of family business or property andfarm work.

It is also imperative to note that the law recognizes that where property is acquired by one of the spouses before marriage but on getting married the other spouse contributes towards development of that property, such a spouse acquires a beneficial interest over the property.

Though Section 26 of the Land Registration Act declares that the registered owner of land is deemed to be absolute owner, spousal interests /rights are recognized as attached to the property as some of the overriding interests which need not to be noted on the register or Title document.

This brings into perspective the requirement of a spousal consent whenever we have any disposition being effected by one spouse affecting land otherwise deemed to be matrimonial property.

Under the now repealed Registered Land Act Cap 300, spousal consent was not a requirement. Such consent became a requirement with the enactment of the Land Registration Act, 2012, the Land Act and the Matrimonial Property Act.

Section 12 of the Matrimonial Property Act provides that matrimonial property cannot be validly alienated without consent of both spouses in a monogamous marriage.Further, Section 36 of the Land Registration Act provides that the overriding interest of one spouse over matrimonial property registered in the name of the other spouse is not to be extinguished or varied unless the other spouse’s consent was obtained before the disposition was carried out.

The law bestows upon lenders or any person intending to acquire an interest over any land deemed to be matrimonial property to enquire from registered owner if the other spouse has consented to the disposition.The registered owner has a duty to give true information as to whether he is married or not. Where he is not married he may be required to swear an affidavit stating that he is unmarried, divorced or widowed.

In case of any misrepresentative or giving of false information by the registered owner as to the marital status, the disposition can be rescinded at the instance of the spouse whose consent was not sought.

The non-consenting spouse can seek the intervention of the court to have any transaction effected without consent voided. Such a spouse will be seeking have any contract entered into without a spousal consent rescinded and if there is any transfer of ownership, cancelled.

The law requires that the consent be in writing and be informed. The spouse giving the consent has a right to seek independent legal advice to help understand the nature of the transaction as well as its legal implications.

Such consent should be free from any undue influence, duress misrepresentation or any other vitiating factors which would blur giving of an independent consent.Any consent obtained by duress, undue influence or misrepresentation can lead to voiding of the transaction at the instance of the innocent spouse.

Spousal consent is important in the disposition of matrimonial property as it gives the transaction validity. The Land Act under section 79(3) provides that a charge over matrimonial property is valid only if it is signed by all spouses or there is a document evidencing assent on the part of the other spouse.

In the case of MugoMuiru Investments Limited v E W B & 2 Others (2017) EKLR, the Court of Appeal held that;

“The Appellant did not regard the issue of trust imposed on the charger, S.B. and its effect on the sale and transfer by HCFK as significant. As stated above, even though the matrimonial property was registered in the name of S B alone, he held the title and legal estate in trust for both himself and Elizabeth jointly. This proposition is buttressed by the decision in Gissing v. Gissing (1970) 2 All E.R. 780. (1971)AC 886. See also Falconer v. Falconer (1970) 3 All E R 449, (1970) I WLR 1333; and Hazell v. Hazell (1972) 1 All ER 923; 1 WLR 301. Lord Diplock in Gissing v. Gissing (supra) at pg 906 in (1971) AC 886 held that;-

    “in nearly all these cases, the inexorable inference is that the husband is to hold the legal estate in the house in trust for them both, for both to live in for the foreseeable future. The couple does not have in mind a sale, nor division of proceeds of sale, except in the far distance.”

Elizabeth’s interest in the matrimonial home was an overriding, equitable and unregistered interest. Such interest entitled her to remain in the property. It was an interest in the property. It follows that a purchaser of the matrimonial property even without notice that Elizabeth was in possession would take the property subject to Elizabeth’s interest. The evidence in this appeal shows that the Appellant either did not do due to diligence, or was unconcerned with the occupation of the property by Elizabeth and her interest in it. The Appellant took the property subject to Elizabeth’s overriding interest in it and Elizabeth being a part owner could not be removed from the property. Even before the Land Registration Act came into force on 2nd May 2012, the equitable beneficial interest of spouse in a matrimonial home occupied by such spouse was an overriding interest and therefore transfer of the title to the matrimonial home was subject to such overriding interest. Under common law, overriding interests are interests to which a registered title is subject, even though they do not appear in the register. They are binding both on the registered proprietor and on a person who acquires an interest in the property. In this appeal, the Appellant acquired the title registered in the name of S.B subject to the interest of Elizabeth. In effect, the Appellant neither obtained legal title of the property as notionally it was overridden by Elizabeth’s overriding interest nor was the Appellant entitled to possession. The transfer to the Appellant was subject to Elizabeth’s unregistered overriding encumbrance”.

The above cited case is a classical case expounding on the legal rights of an unregistered spouse over matrimonial property. It also gives a clear picture of the legal ramifications of failure to involve a spouse in the process of disposing off matrimonial property.

The requirement of spousal consent before matrimonial property is disposed of helps in the protecting the Constitutional right enshrined under Article 40(2) (c ) wherein parliament has been mandated to enact laws and has enacted laws which guard against arbitrarily deprivation of a person of property of any description or of any interest in, or right over, any property of any description.

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