dc.description.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 |
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