For wealthy couples, divorce isn't just about who gets the house, the car or the bank account. Some property might be in a trust, and other assets could be sitting outside Kenya altogether. So, by the time a marriage ends, figuring out who's actually entitled to what can take a lot more digging than just checking whose name is on the title deed.
Under Kenya's Matrimonial Property Act, 2014, courts ask whether an asset, or the benefit of it, was acquired during the marriage, and whether it was meant for the family's use.
"They also consider the financial and non-financial contributions made by either spouse towards acquiring, maintaining or improving the property," says Leah Ng'ang'a, a family law advocate and managing partner at Ng'ang'a and Associates.
So, what if the house is registered to a company, not either spouse? A spouse can still stake a claim to it, Ng'ang'a says, if they can show a link between the property and money they put into the marriage.
"The court may also look beyond the company's name to establish who actually owns or controls the property," she says. "Where there is evidence that a company structure has been used to keep matrimonial property out of reach, the court can, in appropriate circumstances, lift the corporate veil."
That matters most in the big-money divorces, where wealth is scattered across several entities instead of sitting directly with the couple.
"Trust property belongs to the trust or its beneficiaries, not the person who created the trust. Courts therefore do not simply treat trust property as belonging to the person who settled it," Ng'ang'a says.
But there's a catch: whoever sets up the trust has to actually own the asset first. And if that person is married, they need their spouse's consent to move it into the trust, which protects whatever claim the other spouse might have.
"If a spouse transfers assets into a trust or offshore company shortly before or during divorce proceedings, the other spouse can challenge the transaction if they believe it was intended to defeat their claim to matrimonial property," she says. "The court can examine why the transfer was made, when it happened, who benefited from it, and whether it was done in good faith."
A transaction that guts the marital estate, or looks like it was designed to hide wealth, is going to draw a closer look.
"There is nothing inherently improper about estate planning or protecting assets through legitimate structures," she adds. It comes down to timing, intention and the circumstances around the arrangement.
A genuine estate-planning move is usually transparent and done in good faith, often years before any marital trouble starts. "A transfer made shortly before or during divorce, particularly where it appears designed to remove substantial wealth from the marital estate, is likely to receive much closer attention."
A Kenyan court's reach mainly stops at assets within Kenya, though it can make orders touching on foreign assets if they're part of the matrimonial estate. The real trouble starts when someone has to actually enforce that order abroad. A Kenyan order doesn't carry automatic weight in another country.
"Depending on the country involved and the applicable laws or reciprocal arrangements, the spouse seeking enforcement may have to begin separate proceedings there to have the Kenyan order recognised and enforced."
This means that disputes over overseas property and investments can get complicated, and expensive, fast.
For wealthy couples, Ng'ang'a points out, splitting things up isn't as easy as selling everything off and dividing the cash.
"A luxury property, family business or investment portfolio may require professional valuation. Real estate appraisers, business valuers and financial analysts may be involved where spouses cannot agree on what an asset is worth."
The court looks at what the asset is, how it's been used, what each spouse put into it and the circumstances of the marriage, bringing in outside experts to value things when needed.
One thing people sometimes miss is that couples who are still married can't just ask a court to divide their property because they disagree over it.
"They can seek declarations on the shares to which each spouse is entitled, but the actual division of the matrimonial property follows divorce."
They can, though, sort it out themselves through a settlement deed, whether married or already divorced.
Financial and non-financial contributions
The law counts both financial and non-financial contributions, which matters a lot in marriages where one spouse earns the income while the other runs the household, raises the children, or holds up the family business.
"The spouse who spends years managing the home and raising children may not have made direct payments towards the acquisition of a property, but that contribution can still be considered," Ng'ang'a says. "The reasoning is that such work can enable the other spouse to concentrate on employment, business or other wealth-generating activities."
Financial contributions are easy enough to prove: receipts, bank transfers, deposits. Non-financial ones are trickier, and there's no fixed formula or percentage in the law for weighing them.
"Its assessment is therefore left to the discretion of the judicial officer, depending in part on how effectively that contribution is presented in court."
As Kenyan families get wealthier and more globally connected, this side of matrimonial disputes is only getting harder.
"Trusts, holding companies, and offshore structures can make it harder to trace where wealth sits, establish who controls it and determine what should properly form part of a matrimonial estate," Ng'ang'a says. The law, she adds, still struggles to keep up when assets are buried across several structures.
Even so, Kenyan courts can look past the paperwork if there's evidence a spouse used a company structure to hide property from the other.
