In the recent past, the uptake of prenuptial agreements in Kenya’s marriage scene has gained popularity. A pre-nuptial agreement is a legally binding contract, signed by parties who intend to enter into marriage with one another.
The agreement sets out the property rights between the spouses in the event of death or breakdown of the marriage. Among the salient features of pre-nuptial agreement include;
- Who owns what property?
- Who controls what property?
- How the spouses’ income is to be treated and,
- How the spouses’ properties would be divided in event of breakdown of the marriage.
A Pre-nuptial agreement is an effective tool to cushion spouses against the normally tedious and costly legal battles relating to division and distribution of matrimonial properties when marriages break down. They serve a two purposes for the benefit of both spouses, especially where they is discrepancy on their financial capabilities;
- First, the agreement protects properties and wealth of financially stronger spouse from being shared in case of a divorce. The protection of property further extends to properties where third parties are involved. For instance, in cases of a widow or a widower, or a divorcee with children from their previous marriages, it will be prudent to sign a pre-nuptial agreement to protect the property rights of those children.
- In addition, a pre-nuptial agreement will come in handy in cases where a man wishes to marry an additional wife. Section 6(3) of the Marriage Act, 2014 presumes that marriages celebrated under customary law are potentially polygamous. In instances where the man wishes to marry a second wife, such an agreement is signed to protect the proprietary rights of both the wives and the husband. The agreement will protect properties of each party in the event of a divorce.
- Secondly, a pre-nuptial agreement entails provision on how the financial needs of the financially weak partner are met after divorce. When drafting pre-nuptial agreements, the financial needs of the financially weaker spouse should be addressed. A provision for certain lump sum payment or right to acquire specified property should be considered.
Legal Framework Governing Pre-nuptial Agreements in Kenya.
In Kenya, Pre-nuptial Agreements are anchored in the Constitution, 2010 and the Matrimonial Property Act, 2013. Article 41(1) of the Constitution provides that every person has the right to own property of any description in any part of Kenya, either individually or in association with others.
The essence of the Constitutional provision is to provide a guarantee that every citizen’s right to property is protected. A person who does not want to share his/her hard acquired wealth before entering into marriage contract in the event of a divorce, is advised to consider a prenuptial agreement before marriage.
Article 41(2)(b) of the Constitution on enjoyment of private property further provides that parliament shall not enact any law that permits the state or any person to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
One of the grounds specified under Article 27 (4) of the Constitution is marital status of an individual. In essence, marital status of a person does not preclude him or her to enter into an agreement that would protect their properties in the unfortunate event of a divorce, which is the reason for having a pre-nuptial agreement.
However, the full recognition of pre-nuptial agreements in Kenya came into force in 2014 after the enactment of the Matrimonial Properties Act, 2013. The Married Women’s Properties Act of 1882 which was in force until 2014 did not recognize pre-nuptial agreements. Section 6(3) of the Matrimonial Properties Act, 2014 provides that parties intending to enter into marriage can enter into an agreement before the marriage to determine their property rights. The Courts recognize the use and validity of pre-nuptial agreements and are ready to enforce such agreements when necessary. In the case of M B K v M B  eKLR, Justice Chitembwe upheld the provisions of a pre-nuptial agreement signed between the Plaintiff and the Defendant.
The Plaintiff and the Defendant had entered into a pre-nuptial agreement before marriage that provided that each party was to own the properties owned by that party at the time of marriage. After divorce, the Defendant sold an apartment she had acquired before marriage and made some profit.
The plaintiff brought this suit against her claiming for share of the sale proceeds of the house, claiming that it was a matrimonial home and he was entailed to share for his contribution.
The Court held that the property did not form part of the properties the couple acquired during their marriage. The property was acquired by the defendant before marriage and was therefore, exclusively hers according to the pre-nuptial agreement they had signed.
Invalidation of a prenuptial agreement.
The essence of a pre-nuptial agreement is to safeguard property rights of the parties, but not to be used to the detriment of a party’s rights. Section 6(4) of the matrimonial Properties Right, 2013 provides that a party whom was induced to enter into a pre-nuptial agreement through coercion, fraud or the agreement is manifestly unjust can move to court to set aside the agreement.
The Act does elaborate further on what would amount to fraud, coercion or unjust prenuptial agreement. This means that each case is heard and determined on its own merits depending on its special and peculiar circumstances.
To this end, the Courts will revert back to common law principles on interpretation of contracts to determine what’s coercion, fraud or injustice in a pre-nuptial agreement.
The common law principles which must be employed in signing pre-nuptial agreements include:
- Freedom to contract.
- The parties must understand the implications of entering into agreement.
- Full disclosure by the parties.
- The terms of the agreement should NOT be unfair to either party.
Parties who wish to enter into a pre-nuptial agreement before marriage are advised to have the discussion on the matter without undue pressure or influence. It is also advisable not to have the pre-nuptial agreement negotiations at a time too close to the wedding date as parties should be in a focused state of mind without being distracted by looming wedding dates.
Further, each of the parties should seek independent legal advice form an advocate to understand the implication of signing such an agreement.
Just like any other contract, parties should exercise the doctrine of good faith when discussing matters pre-nuptial agreement for them to fully understand what they are gaining or giving up by signing the agreement.
The case of M B K v M B  eKLR, the plaintiff stated that he understood the prenuptial agreement he signed to mean that all properties owned by the parties after marriage would become jointly owned.
It is advisable where possible to have a schedule providing properties and rights pertaining to them.
A Pre-nuptial agreement is a safe vehicle to avoid misunderstanding, loss of property of lengthy and costly legal battle concerning property after a divorce. The parties provide an amicable way of sharing or dividing their properties after divorce without drawing battle lines.
Pre-nuptial agreements also act as a limit to Court’s power to fully invoke the Matrimonial Properties Rights Act when it comes to division of properties. The common principle used in division of matrimonial property is that a party will get a share commensurate to their contribution, both monetary and non-monetary, to a certain property.
However, with a pre-nuptial agreement which has been accepted as valid by the Court, the Court grants the wishes of the parties concerning the sharing of their property as provided in their prenuptial agreement.
This not only protects properties acquired before married but also provides certainty on what each party should expect in case of divorce. The agreements give parties in a marriage the freedom to engage in their own separate economic activities and creation of wealth without the fear of being drawn into Court battles by the other party who wants a slice of their hard earned wealth, even when they did not participate in its acquisition.
Take home on prenuptial agreement
- They are recognized and legally enforceable in Kenya.
- Must be in writing.
- Parties wishing to enter into pre-nuptial agreement should hold such discussion in a free and independent manner, devoid of undue influence or pressure.
- Parties to provide full disclosure to avoid setting aside of the agreement.
- Parties are advised to engage independent advocates who will explain to the implications of entering into a pre-nuptial agreement before they sign it.
- Pre-nuptial agreements cannot be used to decide matters relating to child custody
- Pre-nuptial agreements can be used to protect the property rights to children of prior marriage, co-wives.
- Pre-nuptial agreements, just like contracts, can be amended with consent of both parties and such amendment must be in writing.
This briefing is a highlight of the Law on Pre-nuptial agreements in Kenya and is intended for general use only. It does not, in any way, create an advocate-client relationship between the parties (sender/recipient) and neither does it constitute legal advice or opinion.
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