Once parties are married they become one. But what happens to their property in the event that they want a divorce? During the subsistence of the marriage and upon divorce, there has to be a distinction between what formed part of the matrimonial property. Which means that whatever property was acquired during the subsistence of the marriage becomes matrimonial property.
This remains the case even when the said property is registered under one spouse’s name. The rebuttable presumption in law is that the property is being held in trust for the other spouse. However this does not necessarily mean that upon divorce the court will grant a 50/50 share of the property to the spouses.
For example if they signed a pre-nuptial agreement the court will be guided by what was jointly owned by the couple and what did not form matrimonial property. Otherwise, the courts would divide the property acquired during the subsistence of the marriage, according to the contribution of each spouse towards the acquisition of said property.
It is important to note that Kenyan law recognizes monetary and nonmonetary contribution; where non-monetary contribution includes farming, child care, domestic work etc. However if the property is registered in joint names, the presumption is that both spouses have equal interest in the property.