When a spouse passes away, they often leave behind property that their family tries to divide or reposes.
These assets may include a matrimonial home, household goods and items in the matrimonial home or any movable or immovable property owned or acquired during the relationship.
Understanding the distinctions between different kinds of relationships is a key when trying to figure out the legal implications when it comes to property ownership and inheritance.
Spouses are considered married when they own a marriage certificate issued by the registrar under the office of the attorney general. Any other form of partnership aside from the legally accepted types of marriages is not upheld by the law.
According to clause 49 of the Matrimonial Property Act of 2013, matrimonial property is acquired during a marriage in two instances; the first instance is one in which the property is one name and therefore is presumed that the assets are held in trust for the other spouse.
The other instance occurs when the property is jointly owned therefore the law presumes that the beneficial interests in the matrimonial shares are equal.
However, there are different complexities when it comes to defining relationships and this article explores and examines the legal framework surrounding property rights and inheritance laws.
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Property Rights for Engaged Couple In case of Death
Speaking to The Kenya Times, family lawyer and an advocate of the High Court of Kenya Diana Ndirangu stated that in cases where a couple is not legally married, when one of the partners dies, the other is not legally allowed to inherit or own any of the property.
However, if the surviving partner can prove contribution towards the accumulation of the wealth, they can be permitted to own the particular property.
“Section 3 (5) of the Succession Act defines who a wife is, and the law also lists beneficiaries of a deceased and unfortunately the law had not foreseen a situation where an engaged person could also be considered a wife.
“Unless you had acquired the property together, prove that in fact you were investing together, there is nothing the partner gets because you have no right to claim,” she said.
On the other hand, if the couple had a child together, the property of the deceased will be inherited by the child.
“The child will inherit but the mother may not inherit because she was not a wife. Unless you acquired the wealth together and can show that you bought the property together,” she explained.
In a case where the couple was legally married, say the husband passes away, the wife is legally allowed to be the custodian of the property until she is deceased. In that case, the property is then transferred to the child or children.
“A wife is entitled to her husband’s property, if they have children she is supposed to hold a life interest, meaning she holds the property until she dies and then the children distribute the property,” added Ndirangu.
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Rights for Cases of Divorce
In a landmark ruling January 2023, the Supreme Court ruled that a person has to prove their contribution towards the accumulation of wealth to rightfully claim a share in an eventuality of a divorce, doing away with the automatic 50/50 division of property.
Interpreting article 4, the five-judge bench held that equality, as envisaged in the law, implies that “Contribution to the acquisition of matrimonial property may not have been done on an equal basis, as a party may have significantly contributed more to acquiring property financially as opposed to the other party.”
Additionally, the judges ruled that ” a party, though having not contributed more resources while acquiring the property, may have in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property.”
This implies that spouses who do not directly contribute financially to the family’s wealth but contribute through household chores and other domestic responsibilities still have the right to claim a portion of the assets.
The Law on What Succession Entails
According to the Succession Act, “except as otherwise expressly provided” succession to immovable property in Kenya of a deceased person is regulated by the Kenyan law.
On the other hand, succession to movable property of a deceased person is regulated by the law of the country of residence of the person at their time of death.
“A person who immediately before his death was ordinarily resident in Kenya shall, in the absence of proof of domicile elsewhere, be presumed to have been domiciled in Kenya at the date of death,” the Act reads.
