Spousal consent refers to the approval required from a spouse when transferring an interest in land to another party involved in the transaction. Since the spouse holds a beneficial interest in the matrimonial property, their consent is necessary for any transaction involving this property, even where the property is not registered in their name. This is because this beneficial interest creates a trust, which constitutes an overriding interest under section 28 of the Land Registration Act 2012, which is enforceable even without registration.

Matrimonial property includes:

• Property acquired during marriage,
• Used or intended for use by both spouses and/or their children.

Section 12 of the Matrimonial Property Act 2013 (the “Matrimonial Property Act”) provides that any sale, transfer, mortgage, or lease of matrimonial property made without the written consent of the spouse is void. Similarly, Section 93 of the Land Registration Act 2012 (the “Land Registration Act”) confirms that spousal consent is necessary for valid land transactions involving matrimonial property.

2. The Risk of Seeking Spousal Consent Where It is not needed

Though it may seem prudent to seek spousal consent in all transactions where any of the parties are married, seeking spousal consent for property not classified as matrimonial could eventually create a legally precarious position.

As per Section 12 of the Matrimonial Property Act, spousal consent is only necessary where property is classified as matrimonial property. Section 13 goes ahead to further clarify that marriage does not affect the ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property.

If land is jointly owned by business partners or for business purposes and not used as a matrimonial home, then the spousal consent is not required, even if one or both co-owners are married, because it does not form part of either’s matrimonial property. Seeking spousal consent in such a situation may create the legal impression that the spouse has an interest, or at least an expectation of involvement, in the property. This could provide grounds for a future claim of beneficial interest—especially during divorce, separation, or succession proceedings.

3. Spousal Waivers: A Strategic Alternative

Where spousal consent is not legally required, such as in transactions involving property jointly owned by business partners, a strategic alternative would be a spousal waiver. This is an elaborately worded affidavit made voluntarily by the spouse after seeking independent legal counsel that he/she has no legal or beneficial interest in the property, and that they will not make any claim to the property in the future. While not express consent, spousal waivers operate as a form of passive consent. The spouse is effectively permitting the transaction to proceed by explicitly renouncing any future claims they may have.

In Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, the Court of Appeal held that contribution, either monetary or otherwise, was necessary to establish a beneficial interest. A waiver may therefore be used to clarify that no such contribution exists or is being claimed.

4. Beneficial Interest arising in jointly owned property

Beneficial interest under Kenyan law arises from contribution to the acquisition, development, or preservation of the property, and not from receiving income generated by it. If a spouse can prove indirect or enabling contributions such as domestic work that freed the partner to generate income, the courts may be inclined to recognize an equitable interest. Using income from jointly owned business property to maintain one’s family does not, in itself, create a beneficial interest for the spouse.

That said, if a spouse can prove that the property formed a central part of family welfare, the courts may be inclined to recognize a beneficial interest. Each case turns on its facts.

In summary:

Spousal consent is a double-edged sword: essential for protection where applicable, but risky and a tinderbox if used without necessity. The key lies in proper legal assessment of the nature of the property and thoughtful use of alternatives like spousal waivers in business contexts.

Legal practitioners and property owners alike should ensure that land transactions involving married persons are properly documented and that the role—or exclusion—of a spouse is clearly stated based on the property’s character and use.

Should you require any further information, do contact us at info@cfllegal.com.