On paper, divorce marks the end of a marriage, but in reality, it is usually the start of a long and complicated financial separation. For instance, couples are finding themselves bound together by a mortgage, which neither can easily walk away from.
Housing data in countries such as America show that a large number of divorced or separated couples are still tied to joint mortgages, mostly due to the high refinancing costs and stricter lending requirements.
In Britain, rising interest rates have further complicated post-divorce settlements, with lenders tightening affordability thresholds, making it harder for one partner to take over a loan individually.
In Kenya, a growing number of couples are divorcing, so how do they handle their mortgages? Amos Shihundu, an advocate at Shihundu Amos & Associates, says the legal reality is at odds with what divorcees assume.
He says leaving the matrimonial home does not release a spouse from their financial obligations.
“Moving out does not extinguish contractual liability. A mortgage is a contract between the borrowers and the lender,” he says.
The advocate says where parties are co-borrowers, the liability is ordinarily joint and several. This means that a lender can demand full repayment from either party, regardless of who continues to occupy the house.
When it comes to the legal standpoint, occupation of the house and contribution to mortgage repayments are treated as separate matters.
“The spouse who vacates the property does not, by that fact alone, shed financial responsibility. The lender’s rights remain intact regardless of domestic arrangements between spouses,” he adds.
This legal rigidity also extends to attempts to alter the mortgage structure. One partner cannot remove the other from the loan without consent.
Mr Shihundu says a mortgage is a tripartite arrangement involving both borrowers and the lending institution. Any change requires the lender’s approval, usually through refinancing or restructuring.
“Absent this, any unilateral attempt is legally ineffective. Courts have consistently upheld the sanctity of contractual obligations with financial institutions,” he says.
Where repayments are not settled on time, the consequences are immediate and shared.
If the partner living in the house stops paying, the lender will initiate recovery measures that may lead to the statutory sale of the property.
“Both parties’ credit standing is affected, and both remain liable for arrears. The lender is not concerned with who occupies the property,” he explains.
Market context
Mortgage penetration in Kenya remains relatively low compared to developed markets, with joint home ownership tied to long-term planning and stability.
However, as more dual-income households take on property financing, legal practitioners say disputes over jointly owned homes are becoming more common in divorce proceedings.
The financial challenge makes it difficult for one party to independently assume the loan.
Can a court force the sale of a jointly owned home during divorce?
“Under the Matrimonial Property Act guided by Article 45(3), courts have the jurisdiction to declare rights in matrimonial property and, where necessary, order the sale of the property where division in kind is impracticable,” Mr Shihundu says.
This approach aligns with practices in other jurisdictions. In the UK, courts may order the sale of a matrimonial home if parties cannot reach an agreement, while in several US states, judges often prioritise equitable distribution, which can also result in the property being sold and proceeds shared.
Contribution rule
The question of who gets what share of the property becomes more nuanced when one party continues servicing the mortgage after separation.
In such cases, courts adopt a contribution-based analysis. Mr Shihundu explains that although post-separation payments are recognised as additional financial contributions, they do not automatically entitle one party to full ownership.
“Courts distinguish between preservation of the asset and acquisition of new equity,” he says.
Payments may be reimbursed or reflected in a larger share, but they do not necessarily extinguish the other party’s interest.
This distinction is important, especially in prolonged separations where one partner may feel they have carried the financial burden alone.
Legal experts say courts are careful not to unfairly enrich one party at the expense of the other, especially where the property was initially acquired jointly.
Additionally, if one partner wishes to keep the property but cannot qualify for refinancing on their own, the court is unlikely to compel the other party to remain tied to the mortgage indefinitely.
In such instances, the most practical outcomes are either a sale of the property or temporary arrangements with a clear exit timeline.
Informal risks
Mr Shihundu cautions against informal deals, which are common during divorce but carry legal risks.
“Such arrangements do not bind the lender and leave both parties exposed to default risk. They can also create evidentiary disputes later.”
Courts frequently encounter disputes arising from these unwritten understandings, which often prove difficult to enforce.
However, the legal position is clear that private arrangements cannot override contractual obligations or registered interests.
A joint mortgage can also prolong the resolution of a divorce.
Although the dissolution of marriage may proceed, property settlement often hinges on resolving the mortgage.
Issues such as valuation, contribution and potential buyouts or sales must first be addressed.
“Courts may defer final orders pending valuation reports, settlement proposals, or resolution of liabilities,” Mr Shihundu says.
