Protecting Family Wealth: Lessons from Recent Matrimonial Property Decisions

When younger family members marry, generational family wealth can inadvertently be drawn into matrimonial disputes. Without appropriate legal and tax planning, years of accumulated wealth can become vulnerable through claims that certain assets are matrimonial property and that a disgruntled spouse is entitled to a share in the assets.

Recent 2025 court judgments from Kenya illustrate how matrimonial claims can have broader implications for family wealth and underscore why proactive planning through prenuptial agreements, lifetime trusts, and other estate planning tools is essential to preserving generational wealth.

Understanding Matrimonial Property in Kenya
Ownership of matrimonial property is determined by each spouse’s contribution toward its acquisition. Contribution can be financial or non-financial, such as managing the home or raising children.

Furthermore, if one spouse contributes to improving property owned by the other, that spouse acquires a beneficial interest equal to the contribution. Therefore, even property acquired or inherited before marriage may become matrimonial property if improved using joint effort or resources during the marriage.

Recently, FIDA-Kenya was unsuccessful in their constitutional petition arguing that matrimonial property should vest in spouses in equal shares regardless of contribution, instead of a contribution-based division of property. While acknowledging concerns that non-monetary contributions, generally more likely to be made by women, may be undervalued, the Court of Appeal emphasised that judges are empowered to assess evidence holistically and make fair and equitable distributions of matrimonial property.

The Risk to Family Wealth
Family wealth can become vulnerable in subtle and unexpected ways. The legal principles of contribution, intention, and beneficial ownership mean that assets originally owned by one family member or inherited from previous generations can be drawn into matrimonial disputes if the other spouse can demonstrate they contributed to their improvement or maintenance.

For example, a child who inherits a family property and later marries may, through the spouse’s financial or non-financial contribution in relation to that property, find that property treated as part of matrimonial property in the event of divorce. Similarly, companies are not always immune: where spouses are directors or shareholders, courts have shown a willingness to lift the corporate veil to determine the true beneficial ownership of the company and, by extension, its assets.

Understanding how exposure arises is the first step toward protecting intergenerational assets through sound structuring and legal advice.

Recent Court Decisions and Their Implications

1. GCR v COO [2025]
   The Court held that contributions made before the marriage did not create matrimonial rights, but those made after the marriage was formalised did. Although the husband had acquired the property before marriage, the wife contributed towards further development and provided non-financial support in managing the home and caring for their child. Her financial and non-financial input during marriage entitled her to a 50% share.

   Takeaway: Property acquired before marriage can become matrimonial property if one spouse contributes to its improvement after the marriage.

2. FZA v RB [2025]
   The wife sought a declaration that two properties, a villa in Kilifi (their matrimonial home) and an apartment in Malindi, were matrimonial property and that she was entitled to a share. The husband relied on a prenuptial agreement signed before the marriage, which provided that any property acquired before marriage would remain his property and the wife cannot make a claim. The Court found that while the Kilifi villa qualified as the matrimonial home, the prenuptial agreement was valid and barred the wife from claiming a share.

   Takeaway: A valid prenuptial agreement can serve as an effective succession and wealth-planning tool.

3. GKW v RNK [2025]
   This case involved property registered in a company’s name. The wife sought to include two companies in the proceedings, as the matrimonial home, where the couple had lived for over 20 years, was registered in the name of one of the companies. The husband opposed the application, but the Court held that corporate structures cannot always shield property in matrimonial matters. Where companies are controlled by one or both spouses, the court may lift the corporate veil to determine the true beneficial ownership.

   Takeaway: Holding family homes or shared assets through a company is not always an effective safeguard against matrimonial claims. Courts may look beyond the company structure to determine beneficial ownership and include such entities in matrimonial proceedings.

4. JJM v JLM [2025]
   This case involved a divorce and settlement agreement that the couple entered into after their marriage, outlining the distribution of their marital property. The husband sought to have the agreement set aside, while the wife argued that it was a valid and binding post-nuptial agreement, as there were no factors such as fraud or coercion to invalidate it. The Court, noting that the Act is silent on post-nuptial or separation agreements, ruled in favour of the wife. It affirmed that post-nuptial agreements are enforceable under contract law, as long as both parties voluntarily and freely agreed to the terms without any vitiating factors. As a result, the Court upheld the agreement and the property distribution as outlined.

   Takeaway: Kenyan case law is moving towards recognising and enforcing post-nuptial agreements as long as no vitiating factors exist. Accordingly, if parties are already married and have not entered into a prenuptial agreement, a post-nuptial agreement may be one of the tools considered when estate planning.

The Bigger Picture: Planning Before Problems Arise
Across many Commonwealth countries, one lesson stands out: matrimonial property disputes are complex, fact-driven, and have the potential to be far-reaching. Even assets acquired before marriage or held through corporate entities can become exposed when courts assess contribution, intention, and fairness.

Families with intergenerational wealth should plan proactively, combining discretionary trusts, prenuptial agreements, and regular estate-plan reviews to keep wealth protected and aligned with family objectives. It is far better to plan early than to risk seeing family wealth diminished due to unforeseen circumstances.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Atiq Anjarwalla and Mona Doshi.

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Contributor
Mahnaaz Dormohamed