What The Law Says About Cohabiting And Sharing Of Property After ‘Divorce’

In Kenya, a cohabitee has no right to lay claim on any property they may have jointly acquired should they separate.

The new marriage and matrimonial property laws exclude cohabitees from benefits available to spouses.

The Matrimonial Property Act, 2013 protects spouses’ rights to monetary and non-monetary contributions during marriage.

It clearly defines a spouse as a wife or husband, which is further emphasised in the Marriage Act (2014).

Experts say the law is very protective of legally married women, with cohabitees lacking legal backing to seek a remedy.

Before the new marriage laws came into effect in 2014, there was hope for cohabitees as one would file for a presumption of marriage as a prerequisite to claiming share of the co-owned property, said Ms Josephine Mong’are, chairperson FIDA-Kenya, a federation of women lawyers.

“But under the new marriage law, all marriages have to be registered. And so now there must be an establishment of a marriage or divorce before you can trigger the Matrimonial Property Act to file for sharing property,” she said.

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