We are concerned with the rights that spouses have over property that they acquire before, during and on the break down of marriage. We are not concerned with the property rights on the death of a spouse this is for the Law of Succession.
There are two systems which obtain on matrimonial property rights
1. Community of Property;
This is based on the assumption that marriage is an equal partnership which has both a social as well as an economic dimension and that system recognises that each party to the marriage performs an important role in that social and economic unit even though their roles may be far in type or in quality. This system assumes an equality in matrimonial property with each party having an equal right to the assets of the marriage. In a pure community of interest system, legal ownership of the matrimonial asset is joint from the time of cohabitation or marriage. Therefore under the pure community of interest approach at the celebration of the marriage all the properties that are owned by either spouse are pooled together and deemed to be jointly owned and this will include any property that was owned before the marriage by the spouses.
In some legal systems you have a deferred community of property approach and the joint ownership of property is deferr3ed until the relationship breaksdown. Therefore under this approach during the currency of the marriage either spouse may own their own property and use it in any manner that they wish or dispose of it but in the event of the marriage breakdown all the property they own is then put together and deemed to be joint property.
In the community of property system in the event of the marriage breaking down entitlement to that property is regarded as an incident of marriage , it is regarded as one of those facts arising out of the marriage itself and that property is then divided equally between the spouses.
This system is common in civil law countries, it is also practised in south African countries like Lesotho and Botswana while the Deferred Community property system is common in Scandinavian Countries.
THE SEPARATE OWNERSHIP APPROACH
This approach presupposes that during the subsistence of the marriage, either spouse may own separate property. However this has not always been the case in the common law tradition and in fact under common law husband and wife were regarded as one (doctrine of unity under common law).
According to Lord Denning the common law regarded husband and wife as one and the husband was that one. This was in a case of William & Glyns Bank vs. Boland (1979) Ch. D 312 at 332. Under common law all the wife’s property and income vested in the husband on marriage and a wife could not own property separate from that of her husband.
In the 18th and 19th century England it was common to have professional husbands and in Republic v. Smith (1915) 1 Cr. a case involving professional husband. Husbands married rich women who then died under mysterious circumstances leaving them all the wealth. With the onset of the industrial revolution, women started to agitate for involvement in socially and economically productive work and sought enfranchisement and the solution to the problem that commended itself was that of separation of property because the problems in their legal status at the time arose from the legal regime that applied to married persons. It was therefore thought that if the spouses marital status no longer affected their property rights then the problem would be solved. This led to the enactment of the Married Women Property’s Act of 1882. This Act recognised the right of married women to hold and own property separate from that of their husbands. This is one of the Acts of general application which applies to Kenya under the Judicature Act.
However, the paradox was that this system of separate ownership which was created to protect married women’s rights became a serious injustice especially when determining matrimonial property rights during marriage breakdown. At the system of separation failed to deal adequately with the economic realities of married life and this is because this system insists that entitlement to matrimonial property be based on evidence of contribution to the acquisition of that property. Given the different roles of husband and wife in married life, it meant that especially women’s or wives roles were not legally recognised ie. Their roles in contributing to acquisition of matrimonial property. It therefore had the fatal disadvantage of not giving recognition to a wife’s contribution by way of her services in the home as opposed to those of the husband as the bread winner.
Basically this is because contribution that was required to be shown had to be direct or financial contribution and not indirect contribution.