Why a Husband Must Obtain His Wife’s Consent Before Selling Any Property

In Kenya, if a husband intends to sell property, it is not simply a matter of owning the title and proceeding. Particularly when the property qualifies as “matrimonial property”, the law mandates that the other spouse must give written and informed consent before the transaction can be valid. In this comprehensive guide, we unpack what “before selling any property” means in this context, why spousal consent matters, which properties fall under this rule, the legal basis, practical steps for compliance, risks of non-compliance, and tips for both spouses and buyers.

When we refer to the phrase “before selling any property”, we mean the obligation to comply with legal prerequisites before completing a sale, transfer, lease, mortgage, or other alienation of the property. This includes:

• Identifying whether the property is matrimonial property (rather than separate property)
• Securing the spouse’s written and informed consent if the law requires it
• Ensuring registration processes (e.g., land registry) observe the spousal-consent requirement
  Failing to address these steps before the sale may lead to the transaction being declared void or voidable under Kenyan law.

Legal Basis in Kenya

In Kenya, several statutes set out the framework:

• The Matrimonial Property Act, 2013 (MPA) provides that “an estate or interest in any matrimonial property shall not … without the consent of both spouses… be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.”
• The Land Registration Act, 2012, also requires that when a title holder undertakes a disposition of land, the transferee or lender must inquire whether the spouse has consented.
• Legal commentary emphasises that spousal consent is mandatory when dealing with matrimonial property, and the lack of it may render the transaction void.

What Is “Matrimonial Property”?

Understanding whether the property is matrimonial is the first key step.

• Under the Matrimonial Property Act, “matrimonial property” means property acquired by one or both spouses during the subsistence of a monogamous marriage, whether or not it is jointly registered, unless it is excluded by agreement.
• For example, a house bought during the marriage for use by the family is likely matrimonial property. 
• On the other hand, property acquired before the marriage (unless co-mingled or otherwise treated) may be “separate property” and may not attract the same consent requirement. 

Why Spousal Consent Matters

There are several reasons why the law insists on consent before selling property:

1. Protection of the non-disposing spouse: Even if a title is in the name of one spouse, the other may have a beneficial interest (especially when acquired during marriage). Without their consent, the transaction may prejudice their rights.
2. Preventing unilateral disposals of family assets: The law recognises the home or jointly owned property as part of the family unit and requires that major decisions affecting it be shared.
3. Legal validity: A sale executed without the required spousal consent may be declared void, and the buyer’s title may be insecure. 

What Happens If a Husband Sells Without His Wife’s Permission?

If a husband proceeds without the required spousal consent:

• The non-consenting spouse may challenge the transaction (by caveat, court injunction, or claim that the disposition is void).
• The buyer or transferee may take no valid title because a key statutory requirement was breached.
• In cases of separation or divorce, the unaffected spouse may assert their share of the property or transaction proceeds.

Practical Guide: Steps for Compliance “Before Selling Any Property”

Here’s a checklist for husbands, wives, buyers, and legal practitioners to follow:

1. Determine whether the property is matrimonial.
   • Ask: Was it acquired during the marriage? Is it used by the family?
   • If yes, likely matrimonial property.
2. Obtain the spouse’s written and informed consent.
   • The consent should be in writing, sworn before a commissioner of oaths/advocate, and state that the spouse understands the transaction and consents voluntarily.
   • The consenting spouse should also obtain independent legal advice or at least be advised of rights and consequences.
3. For the buyer or transferee, perform due diligence.
   • Check that the consent form is valid and meets statutory requirements.
   • Confirm the spouse is aware and has freely signed.
   • Check for caveats or notices filed by the non-disposing spouse.
4. Register the transaction properly.
   • Submit the consent form (often referred to as a “spousal consent” form) to the relevant land registry.
   • If the transaction is a mortgage, lease, or charge, ensure the spousal consent is lodged.
5. Consider entering a marital property agreement (pre- or post-nuptial) if spouses wish to exclude certain property from the matrimonial pool.
   • Such agreements can specify that certain property is separate and thus not subject to the mandatory consent rule.

Common Misunderstandings & Pitfalls

“It’s my name on the title, so I can sell.” Not always true. Even if only one spouse’s name appears, the other may hold a beneficial interest if acquired during the marriage.

“My property was business property, so no consent was needed.” Beware: If it is used by the family/home or acquired during marriage, it may still be matrimonial property. Some commentary warns against seeking consent where it isn’t needed since it may imply a spouse’s interest. 

“I can assume implied consent or oral consent.” No — the law requires written, informed consent in practice. Oral consent may not suffice for registry purposes.

“Avoid consent — I’ll deal with issues later.” Risky. The transaction may be void before any dispute arises; the buyer’s title may be challenged, causing financial loss.

Implications for Buyers and Investors

If you are a buyer purchasing property from a married person, ensure that:

• The vendor has obtained spousal consent (if required) and that the form is valid.
• The title search shows no caveat or pending claim by the spouse.
• You are aware that even if the title is registered, the spouse’s beneficial interest may be enforceable.
  Ignoring these steps can lead to long legal battles or losing the investment.

Implications for Spouses

For wives (or husbands) whose spouse wishes to sell:

• Check whether the property is matrimonial property — if so, you have a legal right to be consulted.
• If consent is demanded, ensure you have legal advice and understand the transaction fully.
• You can seek to register a caveat on the property to protect your interest if you suspect a sale is imminent without your knowledge.
• If your spouse sold without your consent, consider legal action to set aside the sale or claim your share.

Conclusion

In short, when dealing with property in Kenya during a marriage, the rule of “before selling any property” must be taken seriously. If the property qualifies as matrimonial property, then spousal consent is not optional — it is statutorily required.

Husbands (or indeed either spouse disposing of matrimonial property) must ensure the other spouse’s written, informed consent is obtained and properly documented.

Buyers must verify this, and spouses must protect their interests. By following the legal steps, you reduce risk and ensure that the transaction is valid, enforceable, and fair.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For your specific circumstances, you should consult a qualified advocate in Kenya.