FEO v ACO (Sued as Co-Administratrix of the Estate of the Late BPO) (Matrimonial Cause E006 of 2023) [2024] KEHC 14889 (KLR)
Factual background
The case involved a dispute between two wives of the deceased who were co-administratrixes of the estate of their late husband, who died intestate. The applicant, being the first wife of the deceased, sought to have the property acquired during their marriage before the deceased married the respondent (second wife) left absolutely to her and her children. According to her, she had beneficial interests in the said properties as they were matrimonial properties acquired jointly by the deceased and her.
The respondent challenged the competence of the suit, arguing that division of matrimonial property applies only between spouses during their lifetime or upon divorce, and that the assets should instead be subject to succession law.
The court’s determination
The learned judge of the High Court dismissed the application for incompetence. According to the court, the issues the applicant raised should have been litigated between her and the deceased during his lifetime, after he married the respondent, and before his death.
The issue of determination of matrimonial property rights cannot be litigated through a succession cause.
The learned judge went ahead and extensively justified his position. Some of the key points discussed in the judgment are as follows:
- The Matrimonial Property Rules, under Rules 4 and 5, envisage the mounting of a suit for determination of rights over property acquired by either spouse during the currency of their marriage, for division upon dissolution of a marriage by a decree of divorce.
- There is no legal basis for determination of matrimonial property rights where there is no decree of divorce or upon the demise of a spouse.
- Matrimonial property rights, being rights in personam (personal rights), are not available to a spouse who is deceased.
Comparative jurisprudence
We look at the court of appeal case of Esther Wanjiru Githatu vs. Mary Wanjiru Githatu [2019] eKLR to see how other courts have approached the question of whether matrimonial property rights survive death of either or both spouses.
The case concerned an application by the first widow of the deceased, who died intestate. She claimed a resulting trust on half of the immovable properties acquired by her late husband and her before the second widow was married on the grounds of non-monetary contributions towards the acquisition and maintenance of the properties.
The court of appeal considered whether such an application ought to have been brought in the succession suit or as a separate suit.
According to the Appellate court, Order 37 Rule 1 of the civil procedure rules, allows any party, including an administrator or an heir or a beneficiary of a trust, to bring an originating summons requiring determination of his/her rights.
The respondent (1st widow), as an heir of the deceased, according to the Appellate court, exercised her rights under the CPC when she brought the said application.
As to whether she was entitled to 50% of the immovable properties acquired by the deceased before the marriage of the second widow, the court answered in the affirmative. According to the court, she had made non-monetary contributions towards acquisition and maintenance of the said property.
A resulting trust on her behalf was therefore created, making her entitled to 50% of the said properties. The trial judge in FEO V ECO case supra disagreed with this position, arguing that since the deceased did not present his case, the conclusion that the 1st widow was entitled to 50% of the properties was reached on assumptions and not evidence.
In re Estate of MM (Deceased) [2020] eKLR, Gikonyo J, faced with a similar question held that the right to matrimonial property is protected by the Constitution and the law, and should be given effect by courts of law as a way of implementing, protecting and promoting the Bill of Rights in the Constitution.
According to the learned judge, the contention that the rights of a spouse in a matrimonial property die with either of the spouses is a misguided notion that should not be entertained.
According to the learned judge, courts ought to recognize the matrimonial property rights of the surviving spouse and set aside the property that constitutes matrimonial property of the surviving spouse from the part belonging to the deceased spouse.
The applicable law
- Law of Succession Act
According to section 35 of the Act, the spouse who survives an intestate is entitled absolutely to the personal and household effects of the deceased and a life interest in the net residue of the intestate estate.
Life interest in the intestate estate entitles the surviving spouse to use the estate in supporting himself or herself. The surviving spouse does not acquire a proprietary interest in the estate and cannot sell, dispose of the estate by will or deal with the estate in a manner that affects the rights of the beneficiaries of the estate.
The act does not acknowledge the right to matrimonial property rights. As per Musyoka J, such rights are alien to the law of succession.
- Matrimonial Property Act
The preamble of the Act states that the purpose of the Act is to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes.
Section 7 of the Act provides for distribution of matrimonial property, according to the contribution of each spouse towards the acquisition of the properties, upon divorce or dissolution of marriage. The Act does not mention what happens when the marriage is terminated by death.
Close reading of article 45(3) of the Constitution and the Matrimonial Property Act reveals a presumption that such rights were intended to arise only upon dissolution of marriage.
The right to Matrimonial property, being a personal right, does not and should not survive the right holder, that is, the spouse. See paragraph 13 of the Court of Appeal Case of Karl Wehner Claasen v Commissioner of Lands & 4 others [2019] KECA 766 (KLR), where the court stated that Causes of action of a personal nature do not survive for the benefit of a deceased’s estate.
- Matrimonial property rules
Of interest to this discussion is rule 4 of the matrimonial property rules, which provides for those who can institute a matrimonial proceeding.
According to the rule 4, the following can initiate a matrimonial proceedings: a spouse; any person against whom a spouse has made a conflicting claim in respect of property; a trustee in bankruptcy; an executor under a will or other testamentary grant, an administrator or a personal representative, of the estate of a spouse seeking an order or declaration relating to the status, ownership, vesting, or possession of any specific property by, or for the beneficial interest of, a spouse or former spouse.
The rule allows an administrator or personal representative to bring a matrimonial property dispute. This may be the basis for the sentiments of Justice Gikonyo in Ire Estate of MM (supra) that matrimonial property rights ought not to die with the death of one of the spouses.
A holistic reading of the rules, however, leaves one in a hotchpotch. I say so because, while rule 4 allows an administrator or an executor of the estate of a spouse to initiate a matrimonial proceeding, rule 5(1)(c) only allows such a proceeding to be initiated during the subsistence of marriage. Death terminates marriage (see FEO V ACO supra). Rule 5(1)(c) effectively shuts doors on survivors of a dead spouse from instituting such proceedings.
Conclusion
There is no certain position on whether matrimonial property rights survive a spouse. Courts have taken divergent positions, with some holding that such rights die with the spouse, while others holding that such rights should survive the spouse.
Reading of various statutes, including the Constitution, Matrimonial Property Act, leads one to the conclusion that matrimonial property rights were intended to arise upon divorce or dissolution of marriage. The existing legislation does not envision a situation where such rights arise upon death of either or both spouses. Relying on the above sentiments, it is the author’s personal opinion that such rights were not intended to arise and should not arise upon death of spouses.
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