Spousal claims to matrimonial property held in trusts and companies: a Kenyan perspective

Abstract

This study investigates the hiding of matrimonial property by dishonest spouses in trusts or companies to frustrate the rights of the other spouse to the same property. The frustration of such rights usually takes place during divorce proceedings. The objective of the study is to highlight the importance of the issue, and offer a critique of the Kenyan legal system’s ability to resolve it. Where Kenya cannot effectively deal with the problem, recommendations will be made on how the legal system could be improved to do so. The study is conducted mainly through a comparative study of legislation and case law from South Africa and England, since there is a lack of local jurisprudence and information on the issue. The major findings were that Kenya's legal system in fact heightened the dangers sought to be avoided. However, the arguments raised in South Africa and England show that Kenyan courts still have adequate powers to resolve the problem, notwithstanding legislation drafted without prior consideration of the issues highlighted in the study. It is recommended that certain provisions of the Matrimonial Property Act be amended by providing for specific powers of the court in the distribution of matrimonial property, and that the powers grant wide discretion in this exercise.