Know your law: The new land law on joint interest in land acquired by spouses

Parties to a conveyance

According to Section 38 (3) of the Land Act, 2020 (Act 1036): “In conveyance for valuable consideration of an interest in land that is jointly acquired during the marriage, the spouses (wife and husband) shall be deemed to be parties to the conveyance, unless a contrary intention is expressed in the conveyance”.

Furthermore, Section 38 (4) of Act 1036 states that where one spouse is excluded as a party to the conveyance, the other party is presumed to hold the land or interest in the land in trust for the spouses (wife and husband), unless a contrary intention is expressed in the conveyance.

This simply means that from 23rd December, 2020 when the Land Act, 2020 (Act 1036) came into force, any property acquired jointly during marriage shall be registered or conveyed in the joint names of the spouses (wife and husband).

However, failure to register or convey a land in the joint names of the spouses (wife and husband), the spouse (party) who registers or conveys an interest in land in the person’s name shall hold the said interest in trusts for both of the spouses unless there is a contrary expression in the agreement.

Restriction on transfer of land by spouse

Consequently, Section 47 of Act 1036 states that: “In the absence of a written agreement to the contrary by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage:

(a) sell, exchange, transfer, mortgage the land, right or interest in the land;

(b) enter into a contract for the sale, exchange, transfer, mortgage or lease of the land, right or interest in the land;

(c) give away the land, right or interest in the land inter vivos; or

(d) enter into any other transactions in relation to the land, right or interest in the land without the written consent of the other spouse, which consent shall not be unreasonably withheld”.

This means that except where there is a written agreement that one spouse will solely hold the interest in land, no spouse shall sell, exchange, transfer, mortgage, lease, give as gift etc for an interest in land which was acquired for valuable consideration during the pendency of marriage without the written consent of the other spouse.

In a nutshell, from 23rd December, 2020, any interest in land which is acquired during marriage shall be conveyed or registered in the joint names of the spouses.

Again, when one is acquiring land which belongs to spouses (married couple), the due diligence must include whether the said land was acquired during marriage to be able to obtain the needed consent required for a valid conveyance.