The Case of Matrimonial Property
“Who do you think you are? Who are you to disrespect my mother?” The anger in Joram’s voice was evident.
His wife Lilian was afraid of her husband’s anger. He had beaten her up before and she did not want the scene to get ugly. She, therefore, kept quiet and did not defend herself. Her mother-in-law was determined to make her life a living hell so that she could get frustrated and leave.
Lilian was brought up in the city and was an educated woman. She operated her own communications company which she started after being retrenched by a top media house in Kenya almost 8 years ago. She was pleased with the company’s growth.
The company that Lilian set up aimed at supporting brands to increase awareness about their products and services mainly through a strong online presence. It provided services such as web design and social media strategy.
Lilian initially worked alone from home the first few months after losing her job. She initially would subcontract services such as web design but the company had grown to a level that she had an office in the Nairobi central business district with 3 full-time staff and between 5 and 10 part time employees.
Lilian and Joram had been married for over 20 years and had 4 children together. The couple got married by customary law and never proceeded to get a marriage certificate either through a church wedding or through the Attorney General’s office.
Joram worked with an international non-governmental organization. The couple had invested over the years. They owned the home they lived in, in an upmarket part of Nairobi. They had also constructed a 3-bedroom permanent house at Joram’s family’s home in the rural area. They also owned a rental property in a middle-class area of Nairobi.
Marriage Based on Trust
Everything was done on trust and the title deeds of two properties bore Joram’s name. The land on which the rural home was built was registered in the name of Joram’s late father. Lilian never at any one time imagined a situation where her marriage would fall apart.
Joram’s mother had never liked Lilian because she was a modern woman who lived in the city and never helped with domestic chores in the rural home. She could not help with tilling of the land, fetching water from the spring or cutting firewood. Her mother in law also considered Lilian’s dressing code inappropriate and immoral.
Joram’s mother and sisters had always been hostile towards Lilian, referring to her as proud and lazy. Initially, Joram used to keep quite and never took sides but as time went by he became very hostile towards his wife, especially when her business started to do well. He became emotionally abusive and also used every flimsy excuse to beat her up.
Things went from bad to worse when Joram got involved in extra marital affairs with different women. He even got into an affair with a young lady that Lilian had hired as her assistant when she used to work from home. The affair became serious and did not stop even after Lilian fired the lady. With time, Joram and the young lady had a son together and he rented her an apartment.
Investments at Risk
It was not until Lilian received an auction notice for their family home from a local bank that she realized that their investments were at risk. She learned too late that he had changed the ownership of the rental property from his name to a limited company jointly owned by him and his mistress, who was the mother of his son.
Joram had taken a bank loan using the family home as security and had defaulted on payments. The home was now at risk of being auctioned. Lilian could not do anything with the rural home since it was built on land that belonged to Joram’s family and now the marriage had disintegrated.
Joram would come home drunk and hostile so Lilian would not be able to have any rational conversation with him. She had to decide what to do in order to save the family home from being auctioned. She took a loan from a Sacco where she was a member, paid some money to the bank so that the home would not be auctioned. She got into negotiations with the bank about how she was going to clear the loan.
The next step was getting a good lawyer to assist her fight for the properties. The legal processes started and when things got there, Joram moved out and settled with his mistress in the rental property he and Lilian had both paid for.
Lilian had a lot of problems proving her contributions in any of the investments apart from the matrimonial property, which was at risk of being auctioned. She had been giving cash to Joram when they agreed to buy property. Joram argued that the loan was taken in agreement with Lilian and was to finance the university education of their two daughters and to also finance the family business, which was being run by his wife.
The court ruled that the matrimonial home was jointly owned by Joram and Lilian and that they both were under obligation to settle their liabilities in order to save it from auction. Lilian had no claim over the rural home as that was property that belonged to someone else.
The court ruled that the rental property was jointly owned by Joram and Lilian but the ownership had already been transferred so the case of ownership would need to be handled through a different lawsuit.
Lilian had to struggle to pay a loan that she knew nothing about and also lose investments she had worked hard for.
People get into marriage on trust. They do not expect the spouse to do anything to harm them. However, things don’t always remain constant. What steps can couples take to ensure that their welfare and that of the children is taken care of no matter what happens to their relationship in future?
We live in a world where documentation is required for everything. When we get into marriage, we sign a marriage certificate. When we get a job, we sign a job contract. Anything that is not documented is a big risk. Should there be a falling out later, you could end up losing everything. I advise couples to be organized in the way they manage their finances. Do not exchange money under the table; operate in a way that provides evidence should that be needed.
Operating 3 bank accounts is a great way for couples to manage their money safely in the long term. Read more about the 3 bank accounts here.
If the two of you have discussed and agreed that you need to pool resources together to buy a house or some other investment, deposit that money in the joint account and let all the monies for the project get handled from there. Ensure that there are clear records about how money ends up in that account, such as bank transfers from a personal account to the joint account. Do not assume that things will always be the same; things can change.
When a couple invests in property, there should be no assumptions about ownership. Let the documentation clearly indicate the names of the owners of the property and the next of kin. Should one party die, the property automatically passes on to the other owner. Stories about extended family members fighting over the property of a deceased family member are common place and there should be no assumptions that those things can’t happen.
Do not invest your money in something that you do not own, such as constructing a home on land that is owned by the extended family. You could lose all in case you get widowed or the marriage breaks. You might be the darling of your parents-in-law but think long term. What will happen when they will no longer be around? Will your investment be secure?
Learn from the story of Joseph in the Bible. He was the darling of Pharaoh but one day that Pharaoh was gone and there came one who did not know Joseph. His people were mistreated and disinherited. That can happen to anyone.
Calculating The Contributing of Both Parties in a Marriage
Many factors are put into consideration when a court has to rule about the contribution of each party to the marriage. Factors such as the income earning capacity of each partner and other financial resources they had, their obligations and responsibilities as well as the contributions each was making to the marriage are all evaluated.
I advise women to evaluate their roles and responsibilities in a marriage carefully, and more so should a woman accept an arrangement to become a full-time stay-at-home-mom. Don’t make that move before you read this very carefully.
The Matrimonial Property Act does not equally divide marital property upon divorce. Each spouse receives their portion of the property in accordance with what is deemed as their contribution toward the property. The Act defines contribution as “monetary and non-monetary contribution(s)” which include:
i. Domestic work and management of the matrimonial home
ii. Child care
iv. Management of family business or property
v. Farm work
Both parties need to be actively involved in building the marriage. The conduct of each party ends up under the court’s scrutiny should the case end up in the courts. The value each party brought into the marriage needs to be proven when things get there.
One might not make much monetary contribution but at the same time, the person is busy supervising projects such as constructions and is actively involved in activities. It is ok for a mother to take a break in her career in order to take care of young children but she needs to think long term.
What will her contribution in the marriage be beside taking care of the babies, who will eventually grow and take care of themselves? Will she be able to prove her contributions before a court of law should the marriage break down? If you plan to take a break in your career to become a stay-at-home-mom, read this before you make any move.
People get into marriage when they are in love and none of them can even imagine the marriage disintegrating. But these things do happen. It is better to hope for the best while being prepared for any eventuality.
Susan Catherine Keter is a life coach, mentor, motivational speaker, freelancer and blogger
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