The other method that can be used to determine matrimonial property is by suing equity by way of two presumptions
1. Presumption of a resulting trust;
A spouse who provides all or part of the purchase money towards acquisition of property will be entitled to a share of that property even if he or she is not the registered owner and this will be proportionate to the contribution that he or she has provided. This presumption firstly presupposes financial contribution and does not hold where there is indirect contribution; one has to show contribution to the purchase. It is easier to apply when there is an outright purchase of property. So when there is purchase or acquisition of property for example by way of mortgage then it becomes more difficult to assess the parties’ contribution to that acquisition. However this particular presumption was applied in Rimmer v. Rimmer (1953) here the wife was able to show that she paid the deposit for the matrimonial home and also continued to make marriage repayments when the husband was away at war and it was held that she had another equal share on the property even though it was held in her husband’s name.
Under this presumption, if a husband or wife makes payment for or puts property in the name of the other spouse, the equitable rule is that he intends to make advancement to her. That is that property was intended to be a gift to the other spouse. This presumption normally arises when there is a special relationship between the parties, like husband/wife and parent/child. It is intended that transfer of property is a gift. However both presumptions are rebuttable. One can bring evidence to show that transfer of beneficial interest was never intended. However evidence will not be admissible if it involves an improper or fraudulent motive e.g. if a person registers property in the spouses name to prote4ct it from creditors, then one cannot use this evidence to rebut the presumption of resulting trust or advancement.
Sarah Wanjiku Mutiso v. Gideon Mutiso
In this case the Respondent who was the husband bought a farm through a loan in 1967. In 1971 he was jailed for sedition for a period of 9 and a half years. That left the Appellant who was the wife to look after the family and to manage the matrimonial property. During the cause of the jail time, the wife was unable to meet the loan repayments and she was also unable to secure a loan using her husband’s property. She then requested the husband to transfer the property into her name so that she could be able to secure a loan and the husband reluctantly transferred the property into her name. The husband was subsequently released from prison but soon thereafter the appellant left him taking with her or the moveable property and also claimed that she was the sole owner of the property which had been transferred to her name. She claimed that the transfer was a gift made to her by her husband and as such he had no claim to the property.
It was held that the transfer of the property into her name was solely for the purpose of enabling the wife to carry out the husband’s business while he was in jail and this rebutted the presumption of advancement.