When a marriage ends, the question of who keeps the house, the land and the business is often harder than the divorce itself. Many people assume that everything is split down the middle. In Kenya, that is not the rule. This guide explains how matrimonial property is shared under the Matrimonial Property Act, 2013, and whether a prenuptial agreement can protect you.
The starting point: equal rights, not equal shares
Article 45(3) of the Constitution provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at its dissolution. The Matrimonial Property Act gives effect to that principle.
In JOO v MBO [2023] KESC 4 (KLR), the Supreme Court made clear that equality under Article 45(3) does not mean an automatic 50:50 split. Each spouse is entitled to a share that reflects their contribution, and that contribution must be proved. The court also confirmed that non-monetary contribution must be taken into account.
What counts as matrimonial property
Under section 6(1) of the Act, matrimonial property means:
- the matrimonial home or homes;
- household goods and effects in the matrimonial home or homes; and
- any other movable or immovable property jointly owned and acquired during the marriage.
Under section 6(2), trust property, including property held in trust under customary law, does not form part of matrimonial property.
Contribution is the key
Section 7 provides that ownership of matrimonial property vests in the spouses according to each spouse’s contribution towards its acquisition, and that it is divided between them accordingly if the marriage ends.
“Contribution” is defined broadly in section 2. It includes both monetary and non-monetary contribution, such as:
- domestic work and management of the matrimonial home;
- child care;
- companionship;
- management of family business or property; and
- farm work.
A spouse who did not earn an income can therefore still claim a share. The court will look at the evidence of what each spouse actually contributed.
Property in one spouse’s name
Title documents do not settle the question. Under section 14, where property is acquired during the marriage:
- in the name of one spouse, there is a rebuttable presumption that it is held in trust for the other spouse; and
- in the names of both spouses, there is a rebuttable presumption that their beneficial interests are equal.
“Rebuttable” means that either spouse can bring evidence to show that the true position is different.
Property acquired before the marriage
Property one spouse owned before the marriage does not automatically become matrimonial property. Under section 9, however, if the other spouse contributed to its improvement, that spouse acquires a beneficial interest equal to their contribution.
Protecting the matrimonial home during the marriage
Under section 12, during a monogamous marriage an interest in matrimonial property may not be sold, given away, leased or mortgaged without the consent of both spouses. A spouse may not be evicted from the matrimonial home except by order of the court. In practice, lenders and buyers ask for spousal consent before dealing with land for this reason.
Polygamous marriages are dealt with separately in section 8, which distinguishes between property acquired with each wife.
Prenuptial agreements
Kenyan law recognises prenuptial agreements. Under section 6(3), parties to an intended marriage may agree before the marriage on their property rights. Under section 6(4), however, the court may set aside such an agreement if it was influenced by fraud, coercion, or is manifestly unjust.
To give an agreement the best chance of being upheld:
- put it in writing and have both parties sign it well before the wedding;
- make full and honest disclosure of each party’s property, income and debts;
- make sure each party receives independent legal advice; and
- review it after major changes, such as children or significant new property.
The Act expressly provides for agreements made before marriage. Agreements made during the marriage are less clearly covered, so take advice before relying on one.
What if we were never formally married?
The Act applies to spouses. Couples who live together without marrying are not automatically covered, and must usually rely on the general law of trusts and contract to claim a share of property. Courts can sometimes presume a marriage from long cohabitation, but in MNK v POM [2023] KESC 2 (KLR) the Supreme Court said that the presumption should be applied sparingly and only on strong evidence.
How to bring a claim
Under section 17, a spouse or former spouse may apply to the court for a declaration of their rights to property contested between them. The claim can be brought during the marriage, alongside divorce proceedings, or after the divorce. (Our guide to filing for divorce in Kenya explains the divorce itself.)
Strong evidence makes the difference. Gather:
- title documents, sale agreements and share certificates;
- bank and M-Pesa statements showing payments;
- receipts for construction, improvements and household goods; and
- evidence of non-monetary contribution, including witnesses who can speak to it.
If you fear that your spouse will sell or transfer property before the case is decided, the court can grant orders preserving it.
Frequently asked questions
Is property always split 50:50 on divorce?
No. Each spouse receives a share that reflects their proven contribution, monetary and non-monetary. In some cases that will be an equal share; in others it will not.
My spouse’s name is on the title. Do I have any claim?
Yes, if the property was acquired during the marriage. The law presumes that it is held in trust for you, and you can prove your contribution to it.
Can a prenup be set aside?
Yes, if it was obtained by fraud or coercion, or if it is manifestly unjust. Independent advice and full disclosure make an agreement much harder to challenge.
How we can help
We advise on matrimonial property claims, prenuptial agreements and the protection of the family home, and we represent clients in court and in mediation. Contact Odek Law Advocates for confidential advice.
This article provides general information on Kenyan law as at October 2026 and is not legal advice. Please seek advice on your specific situation.