The buyer’s advocate has asked the seller to bring his wife to sign a consent form, and the seller is offended, the land is registered in his name alone. Under Kenyan law, that consent may be exactly what protects the transaction from a later challenge.
When is spousal consent required for a transfer?
Where the land being sold, charged or leased is a matrimonial home, the spouse of the registered owner must consent to the dealing. The requirement reflects the protection that the Land Registration Act, 2012 and the Matrimonial Property Act, 2013 give to spouses in relation to the matrimonial home. The requirement applies whether the dealing is a sale, a charge to a bank or a long lease, and registries decline instruments lodged without it.
What interest does a spouse have in matrimonial property?
The Matrimonial Property Act, 2013 recognises that a spouse may acquire an interest in matrimonial property through contribution, whether monetary or non-monetary, such as the care of the family. Questions of interest arise most often where the title stands in one spouse’s name alone, which is why registries insist on the consent before registering dealings in a matrimonial home.
How is consent documented in practice?
Consent is documented so that the registrar can be satisfied the spouse understood the dealing and agreed to it. The following items are commonly required:
- The spouse’s written consent in the form required for registration purposes.
- Verification of the spouse’s identity by the registrar or an advocate.
- Supporting documents, such as a marriage certificate, where proof of the relationship is needed.
What if a spouse will not consent?
A refusal does not end the transaction by itself, but the dealing cannot be registered while the objection stands. Options include resolving the matrimonial property question first, restructuring the transaction, or obtaining the court’s direction where the parties disagree. Completing the deal without consent invites a challenge years later, when assets have moved on. Our conveyancing team in Nairobi advises buyers and spouses on these questions; the statutes are published on Kenya Law, and our practice areas set out related services.
For guidance on your specific situation, contact CS Advocates LLP, call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.