Living Abroad with Property in Kenya? Protecting Your Matrimonial Property Interest Before Divorce

You may be living outside Kenya while substantial property acquired during your marriage remains in Kenya. You may have sent money over several years to purchase land, construct a family home or acquire an investment property. The property may be registered solely in your spouse’s name. The marriage may now have deteriorated, and you may be concerned that the property will be sold, charged or transferred before the divorce is concluded.

This situation affects both Kenyans living abroad and foreign spouses with property interests in Kenya.

The immediate question is not always how the property will eventually be divided. It may be whether your interest can first be identified, declared and protected while the marriage still subsists.

Kenyan law provides a remedy for that purpose.

You do not necessarily have to wait for divorce

Kenyan matrimonial property law distinguishes between a declaration of rights in contested property and the division of matrimonial property.

Section 17 of the Matrimonial Property Act permits a person to apply to court for a declaration of rights to property contested between that person and a spouse. The application may be made even though a matrimonial petition has not been filed.

The Court of Appeal explained this distinction in AKK v PKW [2020] KECA 335 (KLR). The Court held that section 17 permits the court to declare the parties’ rights in contested property even while the marriage subsists. Section 7, however, deals with division: matrimonial property is divided when the spouses divorce or their marriage
is otherwise dissolved.

This distinction can be significant where your immediate concern is not obtaining your final share, but preventing uncertainty over property in Kenya while the marriage or divorce proceedings continue.

A declaration under section 17 is therefore not a premature divorce settlement. It answers a different question: what rights do the spouses presently have in the contested property?

Why living abroad can make the problem more difficult

Distance frequently creates an information problem.

You may know that money was sent to purchase or develop property in Kenya but not know its current registration status. You may have copies of bank transfers but no title documents. The property may be generating rental income over which you have no visibility. You may also learn, sometimes indirectly, that your spouse intends to
sell or charge it.

Before litigation is considered, it may therefore be necessary to establish what currently exists.

A Kenyan advocate can undertake the relevant property searches, examine the registered ownership and encumbrances, review the acquisition documents and compare them against evidence of the parties’ contributions. The purpose is to
determine whether there is a proprietary interest capable of assertion and whether immediate protective action is necessary.

For a person living abroad, this preliminary investigation may often be undertaken without the client first travelling to Kenya.

The title being in your spouse’s name may not determine the dispute

Marriage does not automatically make every asset owned by either spouse matrimonial property. The nature of the property, its acquisition and the circumstances of the marriage remain relevant. Section 13 of the Matrimonial Property Act preserves each spouse’s separate property outside the matrimonial property regime.

However, once property is established to be matrimonial property acquired during marriage, registration in one spouse’s name does not necessarily conclude the beneficial ownership question. Section 14 creates a rebuttable presumption that matrimonial property acquired during marriage and registered in one spouse’s name is held in trust for the other spouse. Joint registration attracts a rebuttable presumption of equal beneficial interests.

Contribution may consequently become important. Under the Act, contribution is not limited to the purchase price. It includes monetary and recognized forms of nonmonetary contribution.

For an overseas client, relevant evidence may include remittances, mortgage payments, construction payments, correspondence concerning acquisition, purchase agreements and evidence showing how the property was developed or managed.

There is also a distinct situation where property remains separate property but the other spouse contributed towards its improvement. Section 9 recognizes a beneficial interest corresponding to that contribution.

What if the property may be sold or transferred?

This is where timing becomes important.

If the property qualifies as matrimonial property, section 12 restricts alienation during a monogamous marriage without the consent of both spouses. The Act also recognises a spouse’s matrimonial interest as capable of protection through a caveat, caution or other mechanism available under land-registration law.

Court intervention may also be appropriate where there is credible evidence of an imminent dealing with the property. In AKK v PKW, for example, the underlying proceedings included preservatory relief concerning property alleged to be at risk of disposal.

The existence of a marriage alone does not justify restraining every asset belonging to a spouse. The property must be identified, the asserted interest properly grounded and the threatened dealing demonstrated. That is why early verification of the Kenyan property position is important.

Already divorced abroad but the Kenyan property was never resolved?

This presents a different but equally important problem.

A divorce obtained outside Kenya may terminate the marital relationship without resolving proprietary rights over assets situated in Kenya. Kenyan courts have recognized that the recognition of a foreign divorce decree and the determination of Kenyan matrimonial property rights are distinct processes.

Accordingly, a person who has already divorced in the United Kingdom, United States, Canada, Europe or elsewhere should not assume that the foreign decree necessarily determines what happens to land, a house or other contested property in Kenya.

The foreign decree, the Kenyan property documents and any property orders already made abroad should be reviewed together before further proceedings are commenced.

The Matrimonial Property Rules, 2022 also prescribe the procedure and court jurisdiction for matrimonial property claims, including jurisdiction according to the value of the property.

When should you obtain Kenyan legal advice?

Legal advice should be considered where you live outside Kenya and have a substantial interest in Kenyan property but:

• the property is registered solely in your spouse’s name despite your contribution;
• you cannot establish the present status of the title or property;
• you have reason to believe that the property may be sold, charged or transferred;
• you need your rights determined while divorce proceedings remain pending; or
• your marriage has already been dissolved abroad but the Kenyan assets remain unresolved.

In those circumstances, the first question may not be what percentage of the property you will ultimately receive. It may be whether the property and your asserted interest can be properly identified and protected before the position changes.

KM Law Chambers represents Kenyan diaspora and international clients in matrimonial property matters involving assets situated in Kenya. Our work includes property investigations, declarations of proprietary rights, preservatory proceedings and matrimonial property claims following dissolution of marriage.

An initial assessment can ordinarily begin with your marriage or divorce documents, available property information and evidence of acquisition, contribution or improvement.

For legal assistance, contact info@kmlawchambers.com, or call/WhatsApp +254 713 741 741.

This article provides general legal information and does not constitute legal advice on any particular matrimonial property dispute.