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Married individuals in Kenya have been cautioned against selling, mortgaging, or charging family property without the consent of their spouses.
The clarification comes amid increased disputes over matrimonial assets, highlighting the strict application of spousal consent laws in property transactions.
In an episode of the Court Helicopter Explainer, a legal expert, Danson Omari, broke down the laws governing spousal consent and protection of matrimonial property, stressing that no married person can dispose of land or assets without their partner’s written approval.
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What Spousal Consent Entails
The law demands that before any property is sold, charged to a bank, used as loan security, or pledged to a moneylender, the spouse must give explicit consent.
This requirement applies regardless of whether the property title bears one partner’s name or both.
“Today we are torn between the family division and the Environment and Land Court division,” Omari explained.
“We are looking at what is called spousal consent,” he added.
Under Kenya’s land laws, a person seeking to sell land or obtain a mortgage must first obtain their spouse’s written consent.
Similarly, if a car is used as collateral for a loan or pledged to a shylock, the other partner’s permission is mandatory.
Protection Against Secret Property Deals
The expert noted that many couples often assume ownership documents bearing only one partner’s name grant them full control.
However, the law recognizes such property as matrimonial if acquired during marriage, meaning both partners have equal rights.
“Even with your own title, if you take it to the bank, there must be an affidavit called a spousal consent to be given to the bank to give you a mortgage,” the lawyer explained.
In cases where a spouse secretly uses property as security, the other partner can stop the transaction.
“You rush to court with your marriage certificate and raise what is called an objection that you never gave spousal consent for the bank to mortgage or take over that property. The bank will lose. The Shylock will lose,” the controversial laywer added.
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Law Protects Families from Exploitation
The provision ensures that neither spouse is secretly dispossessed or rendered homeless through unauthorized transactions.
The law, enacted by Parliament, upholds transparency and fairness in marriage-related property dealings.
“Any transaction on land or property by the bank or anybody, your consent, you as the wife or husband, is mandatory,” Omari emphasized.
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