Matrimonial Property Disputes in Polygamous Marital Relations
The previous article was about the Contribution aspect in matrimonial property disputes. This article is more focused on polygamous marriage and the considerations the Courts take into account in rendering their minds towards determining contribution in polygamous relations.
Matrimonial property is defined to mean the matrimonial home or homes, household goods and effects in the matrimonial home or homes or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
Polygamy has been defined in the Marriage Act 2014 as the state or practice of a man having more than one wife simultaneously.
Distinct aspects of matrimonial property ownership in polygamous relations-The Kenyan law
Under the Matrimonial Property Act 2013 where polygamous marriage is dissolved, the matrimonial property acquired by the man and the first wife is to be retained equally by the man and the first wife only, if the property was acquired before the man married another wife.
Where matrimonial property is acquired by the man after the man marries another wife it is to be regarded as owned by the man and the wives taking into account any contributions made by the man and each wives.
In the event there is an agreement between the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.
Where ownership of such matrimonial property is fluid and left to proven circumstances to determine each party’s rights, it is necessary for parties entering into a polygamous union to protect their assets and rights through a Prenuptial Agreement.
If parties have already contracted a polygamous marriage, then they can consider a post-nuptial agreement to define the matrimonial property rights.
Determining matrimonial property disputes in a polygamous union
It is important to note that each dispute is determined on a case by case basis and on the evidence presented in court by each party.
The following are some precedents by the Kenyan courts as a guide.
1. What is matrimonial property?
In Matrimonial Cause No 3 of 2018 T.M.W. vs F.M.C. 2018, Justice Nyakundi opined; “Firstly I shall determine whether the suit property falls in the category of matrimonial property.”
Turning to the provisions of the Matrimonial Property Act, Section 6 of the Matrimonial Property Act, 2013 defines a matrimonial property to include the matrimonial home or homes, any household goods in the home or homes or any other property jointly owned and acquired during the subsistence of the marriage. Basically for property to qualify as matrimonial property, it ought to have been acquired during the subsistence of the marriage between the parties unless otherwise agreed between them that such property would not form part of matrimonial property.
In the case of Federation of Women Lawyers Kenya (FIDA) vs. Attorney General & another  eKLR, Mativo J. observed that:-
“…Furthermore, subject to Section 6 of the Act, the interest of any person in any immovable or movable property acquired or inherited before marriage does not form part of the matrimonial property. The Act introduced and recognizes prenuptial agreements which were previously not recognized by the courts. The Act allows parties to any intended marriage to enter into an agreement before their marriage to determine their property rights, which is enforceable provided that the agreement is not influenced by fraud, coercion or is manifestly unjust.”
2. Can a party come to the court to seek redress where they are not ready to dissolve the marriage?
Section 17 of the Matrimonial Property Act 2013 provides that; “A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.”
In the persuasive case of N.C.K vs G.V.K  eKLR (Civil Suit No 66 of 2012) , Muchelule J observed thus:
“In England, under the Matrimonial Causes Act 1973, in instances where parties, for religious or other reasons, do not want to divorce, and if a couple chooses not to bring matrimonial proceedings, the court will resolve any questions about the beneficial entitlement to their property without using the divorce court’s adjustive power. The Family Law Act 1966 at section 33(4) provides for declaratory orders which are intended to do no more than declare the nature of the interest that is claimed.
In the case of Arif vs Anwar  EWHC 124 (FAM) the parties filed divorce proceedings but the same was yet to be determined. The court proceeded to declare each party’s beneficial interest in the matrimonial property without severing the same.
The High Court in Civil Suit 14 of 2013 (OS) C K v A G M  Eklr reasoned thus, “It would appear to me that a spouse can, under section 17 of the Matrimonial Property Act 2013, either where there is a divorce matter pending, or where, for whatever reason, he can no longer live together with the other spouse but is not seeking to divorce, come to court to resolve any questions about beneficial interest in the matrimonial property without severing the same.”
3. What does the law say about division of matrimonial property?
Section 7 of the Matrimonial Property Act. 2013 provides that.” Subject to Section 6 (3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” Subsection 6 (3) speaks to the freedom of parties of an intended marriage to enter into a prenuptial agreement.
In Divorce and Matrimonial Case No E1 of 2020 ENN vs. SNK  Eklr it was opined that a matter regarding division of matrimonial property ought/shall have the following facets proved by either party:
- The fact of a valid, legal, regular marriage in law
- Dissolution of such marriage by/through an order of the Court
- That earmarked/listed property constitutes matrimonial property acquired and developed during subsistence of the marriage
- Contribution by each party to the acquisition/development.
A similar view was adopted in Civil Suit No 6 of 2012 P.O.M vs. M.N.K (2017) eKLR where the court appreciated that:
“This is a suit for division of matrimonial property. The legal regime governing such endeavor is the Matrimonial Property Act, No. 49 of 2013. The relevant provisions are to be found in Part III thereof. According to those provisions, in particular section 7, such property is to be divided upon divorce or dissolution of the marriage. The prerequisites are that the parties ought to have been in a marriage, to have had acquired matrimonial property during coverture and for their marriage to have been dissolved as at the point orders on division of matrimonial property are being made. A party, who moves the court for orders relating to division of matrimonial property, or declarations thereon, must strive to bring his case within the prerequisites stated above…”
4. How does the court determine parties’ contribution?
Contribution is defined under the Matrimonial Property Act of 2013 to mean monetary and non-monetary contribution and includes
- Domestic work and management of the matrimonial home
- Child care
- Management of the family business or property
- Farm work.
In determining the aspect of contribution, in Matrimonial Cause No 16 of 2014 F.S vs E.Z (2016) EKLR , the court held that, ” The respondent was out of the country while the applicant took care of the properties. Nothing was wasted. That amounts to contribution. The applicant was taking care of the properties knowing that she had a recognizable stake over them. The applicant indirectly contributed towards the acquisition of the property. The respondent had faith in her and that is why he allowed her some of the properties to be in her name only. I therefore hold that there was non-monetary contribution by the applicant. She oversaw the purchases and managed the properties”
In Civil Suit No 39 of 2012 UMM Vs IMM the court stated as follows: –
“Statute now recognizes the non-monetary contribution of a spouse.” It however does not go far as what the Court of Appeal had suggested in N W where it argued that Article 45 (3) was perhaps “a Constitutional Statement of the principle that marital property is shared 50-50 in the event that a marriage ends.” As far as I can see it is the provisions of Sections 2, 6 and 7 of The Matrimonial Property Act, 2013 fleshes out the right provided by Article 45 (3). By recognizing that both monetary and non-monetary contribution must be taken into account, it is congruent with the Constitutional provisions of Article 45 (3) of The Constitution that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. I take the view that at the dissolution of the marriage each partner should walk away with what he/she deserves. What one deserves must be arrived at by considering her/his respective contribution whether it be monetary or non-monetary. The bigger the contribution, the bigger the entitlement. Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then, the Courts should give it effect. But to hold that Article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution. It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property. That surely is oppressive to the spouse who makes the bigger contribution. That cannot be the sense of equality contemplated by Article 45 (3) …’
5. How do the courts determine each parties interest in a polygamous union?
In Matrimonial Case No 1 of 2017; MAA V AR (2018) Eklr Justice Chitembwe pronounced; “ There is no formula for distribution of Matrimonial Property. What the court should consider is the contribution by the parties towards the property which is the subject of distribution. Where the financial contribution of each party is known, it becomes easy for the court to distribute the property in line with Section 7 of the Matrimonial Property Act. However, where the contribution is non- monetary, the situation becomes difficult. The court has to estimate the efforts by the spouse who did not make any financial contribution and give it a value, either as a percentage or as a lump sum.”
The facts of above the case are that the parties were married in 1982 but they divorced on 16th June 2017 through the Kadhi’s court. A Divorce certificate was issued. M.A.A is the plaintiff and the defendant (AR) was her husband. During their marriage they lived on plot number [Particulars withheld] Marsabit. They had three children. The defendant had another child from his second wife.
The dispute involves two properties which are located in Marsabit town. Both parties confirmed that before they were divorced, they had separated for quite some time but the plaintiff kept on residing on the same premises.
The Court framed the issues for determination as follows: –
1) Whether plot numbers [Particulars withheld] and [Particulars withheld], Marsabit town are Matrimonial properties and whether the plaintiff made any contribution towards the acquisition of the properties.
2) Whether the plaintiff should render any account on the rent collected monthly.
In determining the pertinent issue of whether the plaintiff made any contribution towards the acquisition of the properties, the court reasoned that the property in question was acquired in 2012. The defendant had another wife. It is not indicated when he got married to the current wife. Section 8 of the Matrimonial Property Act provides for property rights in polygamous marriage. Section 8 states as follows: –
(1) If the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved, the—
- Matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife
- Matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the man and each of the wives.
(2) Despite subsection (1)(b), where it is clear by agreement of the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.
The court in its judgment pronounced; “Plaintiff has lived with the defendant for a longer period than the other wives. Although the property was acquired in 2012, it is only the Plaintiff who has dealt with the property among the defendant’s wives. The Plaintiff has been collecting the rent for over ten (10) years.. Her contribution in the family is higher than that of the other wives. Given the circumstances of this case, I do assess the Plaintiff’s contribution towards Plot No. 37 to be 30%. The Plaintiff is entitled to 30% of the property. I am aware that the defendant may claim that the plaintiff will also inherit property from her parents. However, that is not the issue at hand.” The above case emphasizes the important aspect of contribution in determining the entitlement of a wife in a dissolved polygamous marriage.
From the above, it is clear that the courts using the facts at hand have the ability to determine parties interest and quantitate the same based on evidence in court.
It is important to note that such family disputes can also be resolved through family mediation.
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