Married couples cannot divide their matrimonial property upon separation without a court’s decree of divorce or any other proof that the marriage between them is dissolved, the High Court in Nyeri has ruled.
Justice Jairus Ngaah held that a couple’s separation does not dissolve their marriage union and the properties remain indivisible until a decree is issued dissolving the marriage.
Justice Ngaah said the essence of Section 7 of the Matrimonial Property Act, 2013 on ownership and division of matrimonial property, is that it does not matter how long a duly married couple may have been separated.
While ruling on a case filed by a man seeking an order to divide property he co-owns with his estranged wife, the judge said a court cannot purport to exercise its inherent jurisdiction and order for the division.
The man, named as Mr DMW, made the application on sub-division of the matrimonial property after his efforts to obtain a divorce decree flopped.
The divorce petition filed in 2014 was dismissed by a magistrate’s court with Judge Ngaah explaining that had it succeeded, the man would have had a chance in the matrimonial suit.
As long as the magistrate court’s decision dismissing his petition is not overturned and the marriage dissolved, Justice Ngaah said Mr DMW is bound by the knot he tied with his wife.
The mam wanted the court to invoke its inherent powers and order for division of two prime properties to severe the proprietorship in common.
The properties are situated within Nyeri town and registered in the couple’s joint names.
The man had asked the court to restrain his wife from alienating, disposing or interfering in any other way whatsoever with the properties.
The man explained that the assets were purchased through their joint efforts in the course of their marriage although he made a larger contribution towards their acquisition.
The court noted that there was no evidence that the properties were held in any sort of trust and neither was there any agreement prior to the parties’ marriage to determine their property rights.