By Victor Orandi

Thousands of couples make public statements to legalize their union. They cite death as the only reason for separation. Unfortunately, divorce sometimes precedes death and then comes the dreaded process of dividing family property.

The Matrimonial Property Act (the “Act”) guides the rights and responsibilities of spouses concerning family property. The Act defines marital property as:

1.  The family home(s)
2. Household goods and;
3. Effects in the family home or
4. Any other immovable and movable property jointly owned and acquired during the marriage.

In divorce, marital property between spouses is divided according to their contribution to the property. However, children being part of the family cannot claim a stake in the marital property once the parents divorce.

The High Court affirmed this decision, ruling that children are not entitled to a share of their parents’ marital property after divorce.

The ruling

The Court decided this when a mother wanted to include her children in a suit to seek the family property to be shared equally. At least 50 per cent of it set aside to take care of the children.

In making the ruling, the Court noted that children are not part of the agreement between a man and a woman when they marry. Thus, not entitled to seek a share of the property generated during the marriage.

However, the Court ruled that a living spouse can bequeath his or her determined percentage of marital property after being divided by the Court.

Also, the children can only petition in court to get a parent’s share of the property when the parent is deceased.

This decision complements the provisions of the Children’s Act in the maintenance of a child. The Children’s Act provides that where the parents of a child were married at the time of the child’s birth, there is a presumption of joint responsibility (including financial commitment) to maintain the child.

Each spouse shall equally share the responsibilities of the children’s upkeep during the marriage. They cannot establish the same during the sharing of property upon divorce.