legal requirement for couples to seek permission of spouses before selling or charging a matrimonial property may prove a hard nut to crack.
Men in polygamous marriages will have to contend with stringent legal requirements aimed at regulating transactions in matrimonial property.
Take the case of Eric Kimani, a private property developer, who has three wives and six children, but has not been able to sell his plots since the new law came into effect.
Kimani says via email that attempts to offer his title deeds as security for loan advancement from banks has been impossible. “I did not know of the legal requirement until the bank asked for my marital status and I said I had three wives who I married under customary law,” he says.
Kimani says the bank said that they could not process his loan until he got written consent from his three wives.
“This law is retrogressive as I have lost business. My intention was also to sell some of my plots — as the sole registered owner — and put up rental units,” he says.
The Land Act requires consent of all wives before transactions or else the deal is illegal. Imagine how hard it would be for the late Ancentus Akuku ‘Danger’ — Kenya’s most prominent polygamist to sell even a portion of his land.
Akuku ‘Danger’, who passed on in 2010, was said to have more than 100 wives and divorced 30 of them during a lifetime that rivaled the biblical King Solomon. Under the law today, Akuku would have had to get the consent of all his wives before he could transact in his land.
Crossroads
As it is now, polygamous men are at a crossroads on whether to seek consent from one wife or all of them before selling off property as required by new property laws.
According to lawyer Allen Waiyaki Gichuhi, legal requirements of spousal consent before transacting in property is a double-edged sword.
“The law was enacted to essentially ensure that spouses consult each other before selling, leasing or charging matrimonial property or homes,” Allen says.
Allen, who recently presented a legal research paper at a continuous legal education seminar for lawyers, says polygamous men are the worst hit by the law.
He says in his paper titled, An Overview of the New Land Acts from a Litigator’s Perspective, that the term matrimonial home is wide.
matrimonial home
“Matrimonial home means any property that is owned or leased by one or both spouses and occupied by the spouses as their family home,” Allen says.
Therefore, a man with several wives, many of whom may be residing in the matrimonial property, must obtain consent from all of them before charging a matrimonial property.
Legally, failure to seek consent of all spouses as required would lead to cancellation of the transaction.
It is also the responsibility of both banks and conveyance lawyers to probe their clients and verify their marital status before engaging in property transactions.
According to Allen, spousal consent in a polygamous system would be very difficult to deal with based on customary law.
To banks, spouses may easily rush to court, seeking orders to stop auction of family homes should their partners default in payment of loans, arguing their consent was overlooked.
In-house bank lawyers concur that their in-trays are files of cases where borrowers’ spouses rushed to court and obtained injunctions on property due for auction, claiming they are matrimonial homes.
The net effect is that banks will be shy to advance loans in many rural areas where polygamy is the order of the day.
effect
Consequently, there would be economic stagnation because of lack of access to credit that may spur growth.
For instance, the farmer who wants to expand his business may inadvertently end up being punished by the law that protects his matrimonial home.
The courts must also be vigilant and guard against such abuse of an equitable remedy where a spouse frustrates the exercise of the Statutory Power of Sale.
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