What is the legal place of pre-nuptial agreements in Kenya?

This article is part of a continuing series on wealth planning and succession. Click here to understand the basics of succession law and click here to read about types of marriages in Kenya and their relevance to succession.

“Yes, I do. Under one CONDITION!”

Just like romantic partnerships, marriage is a financial partnership hence protection of property interests of each spouse is vital. In a bid to secure property rights, the Matrimonial Property Act, 2013 was enacted and section 6(3) incorporated. The Act provides that parties to an intended marriage may enter into an agreement before their marriage to determine their property right. Such an agreement is referred to as a Prenuptial Agreement.

Prenuptial Agreements, commonly known as prenups, have gained traction within the Kenyan jurisdiction over the past 3 decades, as divorce rates rise. These agreements presuppose how couples should divide property in case a divorce occurs. Prenups act as a shield, in protecting certain assets from vindictive and disgruntled spouses upon divorce.

Nature of a Prenuptial Agreement

The Matrimonial Property Act is silent on the form that a prenup should take. Nonetheless, prenups are viewed as contracts and must conform with the provisions of section 3(3) of the Law of Contract Act. These provisions maintain that a contract must be:

  1. In writing;
  2. Signed by both parties; and
  3. Signatures must be attested to.

The legislative provisions highlighted above, preserve and uphold the freedom of contract as parties are free to enter into and determine the terms and contents of the Prenuptial Agreement. However, section 6(4) of the Matrimonial Property Act provides that a party to a prenup may apply to a court to set aside the agreement. The court may set aside the agreement where it is proved that certain conditions influenced the agreement. These include:

  • Fraud;
  • Coercion; and
  • Where agreement is rendered manifestly unjust.

Prenuptial Agreement as an Insurance Cover

Criticisms concerning Prenuptial Agreements have been aired over time. These agreements are viewed as “divorce contracts”; damning a marital relationship before it begins. Nonetheless, Prenups act as a safeguard from a financial standpoint. In the event of a divorce, each partner’s assets go to the right person. Think of car insurance; procuring such a policy does not mean that an accident is bound to occur. It merely safeguards a party in case of involvement in a car accident. Premarital agreements that are fairly and ethically structured, with informed parties who have had proper consultation makes things easy in case of a divorce. Prenups must not be viewed as a point of attack but as a smart way of building an efficient and effective framework for marriage.

Recommendations

Before executing a Prenuptial Agreement, it is advisable that both parties seek independent legal advice concerning the terms, so as to be adequately informed. Additionally, it is good practice to raise such an agreement long before marriage to ensure parties are accorded sufficient time for review before execution.

In conclusion, Prenuptial Agreements are effective tools for wealth planning and protection provided that they are drafted with fairness and foresight. A Prenup should not be viewed as the “Angel of Doom”, but as a source of security and a sense of peace of mind in case of any unfortunate eventuality. 

Apologies

We were supposed to discuss wills today. However, we made the editorial discretion of publishing this article in The Legal Analytica weekly instead of The Interpreter as it is closely connected to this month’s theme on succession. Thus, we shall publish on wills next week and The Interpreter will resume also.

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Cover image credits: Image by Gerd Altmann from Pixabay

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