With the enactment of the Matrimonial Property Act, 2013 (the Act), prenuptial agreements gained formal recognition in Kenya. The Act came into force on 16th January, 2014 and repealed the Matrimonial Women’s Property Act of 1882 which did not provide for pre-nuptial agreements. Its main objective is to provide for the rights and responsibilities of spouses in relation to matrimonial property and connected purposes. Section 6(3) of the Act provides that parties to an intended marriage may enter into an agreement prior to their marriage to determine their property rights.
In this article we will delve into the validity and enforcement of Prenuptial Agreements, which are gradually gaining recognition in Kenya as an efficient and cost effective way for couples to iron out, before entering marriage, property rights issues that could arise in the event of separation, divorce or death.
What is a prenuptial Agreement?
This is an agreement that is entered into by a couple prior to a marriage that establishes their control of their legal and financial right over their respective properties, in the event of divorce.
Depending on the construction of the prenuptial agreement, it covers any assets acquired whether before or after the marriage from being divided between a couple upon divorce.
This agreement takes priority over other rules on the subdivision of matrimonial property.
Ingredients of a prenuptial Agreement
- Must be entered into before marriage.
It is however recommended that the prenuptial agreement is not signed too close to the wedding date as it may be considered as putting undue pressure. Instead both parties should be aware of the terms early enough and be allowed to understand and appreciate the circumstances of the legal and financial disclosure made by the other party. Under common law, prenuptial agreement must not be entered into less than twenty –one (21) days before the marriage.
- Both parties must freely enter into the Prenuptial Agreement
The parties must have an understanding and full appreciation of the implication of the prenuptial Agreement.
- The Prenuptial agreement must not be unfair or grossly unequal between the Parties. The division of the assets should not be skewed too heavily in favour of one party and cannot be unconscionable.
- Parties should make full disclosure of all their assets including those that they intend to exclude from matrimonial property under the Prenuptial Agreement. If there are any assets that are shared between either one of the parties and a third party, it is important to disclose these assets as separate property.
- Should not adversely affect a party’s child-support obligations, in the event the couple has children.
- Should contain information and directions of what happens to each asset and liability mentioned in the prenuptial agreement in the event of a divorce.
- Cannot violate any criminal laws. For instance where a prenuptial agreement is signed to defraud creditors of either or both spouses.
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Legal framework governing Prenuptial Agreements in Kenya
- Article 40(1) of the Constitution of Kenya 2010, states that every person has the right either individually or in association with others to acquire and own property in any part of Kenya;
- Article 40(2) b of the Constitution of Kenya 2010, states that Parliament shall not enact a law that permits the state or any person to limit or in any way restrict the enjoyment of any rights under this article on the basis of any of the grounds specified or contemplated in article 27(4). Marital status is one of such grounds under article 27(4) the Constitution of Kenya 2010.
- Section 6(3) Matrimonial Property Act provides that the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.
Grounds for Invalidating a Prenuptial Agreement.
Section 6(4) of the Matrimonial Property Act, gives courts the power to set aside Prenuptial Agreements. If it is proven that the agreement was influenced by fraud, coercion or is manifestly unjust. However, the Act is silent on what amounts to fraud or coercion or what would render an agreement manifestly unjust.
Whether an unregistered person post-nuptial agreement overrides a registered ante-nuptial agreement
A gap is created for as long as the Kenyan law is silent on post-nuptial agreements. However, Kenyan courts as illustrated below have stepped up to address the place of post-nuptial agreements in the subsistence of a marriage. The cases can be referenced to respond to this question.
In the case of CYC v KSY (2014) eKLR the High Court confirmed and reference the post-nuptial agreement executed by the parties on deciding on the petitioner’s prayer for alimony pendente Lite.
In OKN v MPN (2017) eKLR, the court of Appeal stated that under section 17(1) of the Matrimonial Act, the court has the power to decide on the distribution of property upon annulment of a marriage; that upon pronouncing a decree for divorce or nullity, the court could inquire into the existence of ante-nuptial or postnuptial agreements made by parties.
Conclusion
In view of the provisions of the Act of Prenuptial Agreements and the jurisprudence couples contemplating signing a prenuptial agreement should be mindful of the following points:
The question of child maintenance should be addressed prior to the signing of pre-nuptial agreements noting that the interests of the child take precedence over all other interests under Kenyan law. As was held in Radmacher versus Granatino (2010) UKSC 42, the agreement cannot be allowed to prejudice the reasonable requirements of any child of the family.
While there is no minimum time requirement for party to review and sign a Pre-nuptial Agreement under the Act, the position of common law appears to be that Pre-nuptial Agreements must not be entered less than twenty-one (21) days before the marriage.
The parties should seek independent legal advice as a prerequisite to signing the agreement to show that the agreement was freely entered by the parties without coercion or fraud. For instance, in the case of DB v PB (2016) EWHC 3431 (fam), the wife’s assertion of misrepresentation failed because it revealed that she had received independent legal advice in the United States advising her not to sign the agreement.
Finally parties may amend the terms of a Prenuptial Agreement by variation, addition, correction or deletion. However, any amendment must adhere to the principle terms of the contract and must be in writing and with the wilful consent of both parties.
For more insights pertaining to this matter, you can reach the writer at mildred@mmsadvocates.co.ke . You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke