Private Ordering Agreements In Kenyan Matrimonial Property Law

Abstract

Matrimonial property agreements are formal agreements signed by spouses that classify the ownership interest of any property. The agreements are divided into three categories namely prenuptial, postnuptial and separation agreements. The practical and emotional implications of these agreements differ and the development of the law that relates to each are divergent. In Kenya, the provision for matrimonial property agreements is invoked under Articles 68(c), 45(3) 27(4) of the Constitution, 2010 as read with sections 6 (3) of the Matrimonial Property Act, 2013. This therefore means that private ordered family agreements are enforceable in Kenya. Privately ordered agreements improve on communication, efficiency, and protection of separate property between spouses. The agreements also meet the demands of spouses satisfactorily. The challenge with the Kenyan legislation is that the law has only made provision for prenuptial agreements but has no mechanisms in place to adequately protect the rights of spouses to equal rights in matrimonial property as envisioned in Article 45(3). There is therefore a need to recognize all the forms of matrimonial property agreements to ensure equality of spouses. The research sets out three objectives and the first is to assess the viability of the use of matrimonial property agreements in division of matrimonial property. The second objective is to find out whether matrimonial property agreements promote fairness, efficiency and effectiveness in property division whereas the third objective is to draw best practice on use of matrimonial agreements from other jurisdictions. The research is guided by the feminism and contract theories. This research has used secondary sources of data for the reasons that the data is easily available and have a pre-established level of reliability and validity. The case study design that was used provided an indepth exploration of matrimonial property law in Kenya that was triangulated using different secondary sources of data and thus increased the liability and validity of the findings of the study. The data that was gathered was analyzed using thematic analysis that was based on the objectives of the study which enabled the researcher to answer the research questions and remain in the context of the research title. This research is based on the hypothesis that matrimonial property agreements are practical when it comes to division of matrimonial property and that they aid the courts in distribution of matrimonial property in a just and equitable manner. The study tests this hypothesis and proves that matrimonial property agreements can be a practical method of division of matrimonial property. The researcher recommends that there is need for recognition of postnuptial and settlement agreements to avoid ambiguity and ensure equality of spouses. The second recommendation is that there is need for development of guidelines to enforce matrimonial property agreements and there is also need for introduction of administrative mechanisms to supplement judicial process of resolving matrimonial property disputes that arise as a result of use of private ordered agreements. The fourth recommendation is that there is need for public education programs on the provisions on section 6 of Matrimonial Property Act