The New Land law particularly the Land Registration Act contains very protective provisions for spouses when it comes to matrimonial property. Prior to the enactment of the New Constitution, dealings in matrimonial property were governed mainly by family law doctrines and case law.
Well the good news is that the New Land Act contains specific provisions safeguarding and protecting a spouse’s interest to matrimonial property whether or not they are registered as owners. Before going into this, there are some cases where land is held in the joint names of two or more persons. Marital holding of property is just one example, where the property as a whole is held in indefeasible shares, meaning no spouse can claim a bigger stake in the asset than the other. The other could be in the case where two or more persons invest in land jointly in shares that are clearly defeasible such that it is clear that person A owns 50% while B owns 50%. The first type is called a joint tenancy while the second is a common tenancy. Common tenancies are mostly where the stake in the property is clear and is defeasible such that in the event one partner dies, then his share in the property transfers to his estate. In a joint tenancy if one of the partners dies, then his share automatically goes to the surviving partner. Part IX of the Land Registration Act refers to all such ownerships, whether they are joint or common as co-tenancies.
In a joint tenancy such as in a marriage, the new law provides that no joint tenant can unilaterally dispose of the property without the consent of the others. This means that in the case of a marriage one spouse cannot sell off the property without first seeking the other spouses ‘consent. In a joint tenancy if one of the joint tenants wishes to opt out of the ownership then his interest can only be transferred to the remaining joint tenants and no others. Any transfer of his interest to someone who is not a joint tenant shall be null and void. This clause is very important for both people who are married to know and is also important if you are purchasing property from a married couple. The consent of the other spouse must be sought. Ordinarily if a title is owned jointly by two persons then the transfer must also be signed by both of them.
It is interesting to note that the law says that there can be no other joint tenancy except in a marriage. Any other persons who wish to own their property as joint tenants can only do so with leave of the court. For example if it is a family owned business which is to continue in perpetuity, then the family cannot create a joint tenancy unless court permission is sought.
Section 93 of the Act clearly details the rights of a spouse over matrimonial property. One interesting provision is that where the land is held in the name of only one spouse but the other can show that they have contributed significantly to the improvement of that land, then the law expressly recognises their co-ownership even if there has been no registration to this effect. For example if you own a piece of land and say your wife has improved it either by maintaining it or improving it in some other way, then legally she becomes a co-owner of that land even if the title is only in your name. This provision is expressly contained in the Act and we wait to see how it will be effected.
Of even more interest is that when a lender is advancing to one person some loan against land as security, then the lender has the duty to inquire if the borrower has a spouse and if he does then he/she must show that they have sought their spouses consent to take the loan. The same with a sale of land. A person buying property is under duty to inquire if the seller has a spouse and if so, if the spouse has consented to the transaction. The law is clear that if it turns out that the consent of the spouse was not sought or if the borrower/seller gave false information to the third party regarding the spouses ‘interest then the transaction becomes null and void. Therefore next time you are buying land add this inquiry as part of your due diligence lest your transaction is declared null and void at the affected spouse’s instance.
These provisions are very helpful especially where one spouse hides their assets from the other or where one spouse is left with virtually no say in dealing with the matrimonial property. The law treats them like almost equals when it comes to matrimonial property.