You are blissfully reading a local daily and come across an advertisement for public auction of a prime plot of land. It seems like its near where you live; upon a closer look it seems identical to the one you purchased eight years ago with your spouse. Believing it to be a mistake you call your spouse to be reassured. Your spouse nonchalantly says that there’s some money “we” owe DD Bank. You are in a panic now as the auction is in five days.
This is the situation countless spouses find themselves in. In more unfortunate scenarios you may find that your home was sold when the new owners send you packing. Courts have been swamped with cases involving disgruntled spouses desperately trying to salvage their property and worried third parties. It is against this background that various Land and Marriage Laws were amended/passed to right this evidently unfair situation.
What is Spousal Consent?
Spousal Consent is a requirement that for there to be a successful sale, charge, lease or gift of matrimonial property both spouses must be aware of the transaction and must agree to it. For interests in Land there is a prescribed form that both spouses execute and must be presented to the Registrar when the Transfer, Lease or Charge is being registered. Consent by Spouse to Transfer and Consent by Spouse to Charge documents are available at LawyerWangu®.
Section 93 of the Land Registration Act provides that where a spouse obtains an interest in Land during the subsistence of a marriage for co-ownership/use of both or all spouses, the property is deemed Matrimonial property to be dealt with under the Matrimonial Property Act. Section 12 of the Matrimonial Property Act provides that one spouse in monogamous marriage cannot unilaterally dispose of matrimonial property.
Section 12 further provides that spouses in both monogamous and polygamous marriages have an interest in matrimonial property capable of being protected by caveat, caution or any otherwise as provided by any law. What this means is that a spouse can register a caveat/caution with the Lands Registrar to the effect that no transaction can be undertaken pertaining that land before they are first notified.
Additionally, section 12(3) provides that it is illegal for a spouse to evict another spouse from the matrimonial home during the subsistence of a marriage. Only the court can order such an eviction.
Who is a Spouse?
Section 2 of the Marriage Act 2014 and the Matrimonial Property Act 2013 describe a spouse as either a husband or a wife married under any recognized marriage regimes in Kenya. The recognized marriages are Christian, Civil, Customary, Hindu and Muslim Marriages.
This may seem a simple enough question with a fairly straight forward answer. However, In the Case of Esther Njeri Mwangi v Equity Bank Ltd & another  eKLR the court found that while spousal consent was required to charge the suit property, the Plaintiff had a duty to bring herself under the scope of the provisions on matrimonial property by proving existence of a marriage. The Plaintiff claimed that she had married the second defendant under Kikuyu customary law but did not tender evidence of the same. Consequently, the court did not find in her favour.
In order for the requirements for spousal consent to apply you must be able to prove that you are a spouse. Usually by a marriage Certificate. Part IX of the Marriage Act 2014 requires that all marriages must be registered and the parties issued with Marriage Certificates. An article Planning a Customary Marriage ? Here is What the Law requires of you that guides on the process of registering customary marriages celebrated before or after the enactment of the Marriage Act 2014 and the corresponding Marriage (Customary Marriage) Rules 2017 is available at LawyerWangu®.
What is Matrimonial Property?
Contrary to popular belief matrimonial property is not just the home that the spouses occupy together. It also includes any property acquired by any of the spouses during the subsistence of the marriage.
According to section 6 of the Matrimonial Property Act Matrimonial Property is categorized into three:
- Matrimonial Home(s) – which is any interest in land that is owned or leased by one or both spouses and occupied by the spouses as their family home such as a house, apartment, hut etc.
- Household goods and effects in the matrimonial home; and
- Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
Presumptions on matrimonial property
The following presumptions apply to matrimonial property acquired during marriage according to section 14 of the Matrimonial property Act:
- Where property is acquired in the name of one spouse there’s a rebuttable presumption that it is held in trust for the other spouse and
- Where the property is in the name of both spouses there’s a rebuttable presumption that their beneficial interests are equal.
These presumptions mean that without evidence to the contrary, property acquired by spouse(s) during the marriage belongs to both spouses whether or not both spouses names appear on the Title documents hence there must be spousal consent before the sale, lease, charge or gifting of the matrimonial property.
Spousal Consent in Polygamous Marriages
Section 12(1) of the Matrimonial Property Act provides that an interest in matrimonial property shall not during the subsistence of a monogamous marriage and without the consent of both spouses be alienated in any form, whether by way of sale, Lease, Mortgage, Gift or otherwise. While this is a laudable provision it raises pertinent questions. What about polygamous marriages? Do the provisions of this section apply to them? If so, how should the spousal consent be procured where there are two or more wives in the cases of Customary or Muslim Marriages?
A reading of section 12 (1) in and by itself seems to imply that spousal consent would only be required for Monogamous marriages. Such an interpretation would be discriminatory towards spouses in polygamous marriages defeating the progress made to recognize all forms of marriages as equal before the law. Where there is ambiguity in the law courts advise that the statute should be read as a whole with one provision sustaining the other taking note of the historical context underpinning the legislation.
While the Matrimonial Property Act does not expressly make provisions for spousal consent in polygamous marriages we can infer the following from a reading of the whole statute and applying a purposive interpretation of the law.
a) Is spousal consent required in polygamous marriages?
Yes. We defined a spouse as a husband or wife married under the recognized regimes. Section 6 of the Marriage Act recognizes 5 forms of marriages and provides that marriages celebrated under customary/muslim law are polygamous/ potentially polygamous. Therefore, spouses in polygamous marriages should be accorded the same treatment as spouses in monogamous marriages. As a result in practice, all dispositions of matrimonial property must be accompanied by spousal consent regardless of the nature of the marriage.
b) How should spousal consent be procured in a polygamous marriage?
Section 8 of the Matrimonial Property Act provides for property rights in polygamous marriages in case of divorce/separation. These provisions can guide on how spousal consent is to be obtained. The section provides that:
- Matrimonial property acquired by a man and his first wife before the man marries another wife shall be retained equally by the man and the first wife. From this we can infer that spousal consent for such property would be obtained from the husband and first wife.
- Matrimonial property acquired by a man after he marries another wife is regarded as owned by the man and the wives taking in to account contribution made by the man and each of the wives. Contribution is defined in Section 2 of the Matrimonial Property Act as both monetary & non-monetary such as farm work, management of family business/property, domestic work, child care etc. From this we can infer that spousal consent for such property would be obtained from the spouse(s) according to their contribution. For example: if the man acquires property with the contribution of all his wives, then consent for such disposition would be from the man and all the wives. If the property is acquired by contributions of the man and his second wife only, spousal consent for such disposition would be from the man and the second wife. In order to safeguard dispositions of matrimonial property where consent is required from one of the wives in a polygamous marriage, it is good practice for the other wives to swear affidavits stating they have no interest in the particular disposition.
Spousal Consent in polygamous marriages is a grey area in the law, we have made the above inferences given current practice and provisions. We stand guided by any judicial declarations on the same.
What happens if you are widowed/single/divorced or if the property is not matrimonial property?
If you are single, divorced or widowed there is no requirement for spousal consent however, in practice it has been established that you need to give a declaration of your marital status accompanying the charge, lease or transfer for registration. Likewise, if the property is not matrimonial property i.e. it was acquired outside marriage to a spouse, it is a business property, or for such other reason the registered owner is required to swear an affidavit. In both instances the seller must swear an Affidavit Negating Spousal Consent Accompanying a Transfer/Charge, available at LawyerWangu®.
Article 45(3) of The Constitution declares that parties to a marriage are entitled to equal rights at the time of marriage during the marriage and at the dissolution of marriage. The requirement for spousal consent ensures that spouses’ rights to dispose of matrimonial property are equal as both must agree to any such dispositions.
Before disposing of matrimonial property ensure you have candid conversation with your spouse(s) and inform them of any consequences on the family of such disposition. A transaction where matrimonial property is disposed without consent is voidable at the instance of the aggrieved spouse.
As a buyer you have a duty to procure from a prospective seller spousal consent or an affidavit negating the same as the case may be in order to protect your interest in the property. Section 103 of the Land Registration Act provides that if any person knowingly makes a false statement orally or in writing in connection with any disposition or transaction involving land or fraudulently procures registration of any document or instrument relating to land they commit an offence and on conviction they are liable to a fine not exceeding ten Million Shillings or imprisonment for a term not exceeding ten years or both. These are the repercussions of making false statements in either the spousal consent the declaration of marital status or affidavit negating spousal consent or deceptively procuring spousal consent.