A premarital agreement (also called prenuptial agreement or “prenup”) is a legal step taken before marriage whereby a prenup establishes the property and financial rights of each spouse in the event of a divorce.It is a written contract between two people who are about to marry setting out the terms of ownership of assets, how to treat future earnings between the two, control of the property of each and how the property will be divided in case of dissolution of the marriage. Prenups are common if one or both parties have substantial assets, or if where one has children from a previous marriage, or where ones property is subject to inheritances, or where parties have high incomes or where other people not party to the marriage have interest in one’s property.
Section 6 (3) of the Kenyan Matrimonial Property Act provides that parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. A prenuptial agreement takes precedence over other principles of subdividing matrimonial property. While many would hold the opinion that proposing a prenup signifies that one is entering a marriage contemplating divorce statistics speak a different language, more divorce petitions are being filed in our Kenyan courts. A survey by Infotrack Kenya done on behalf of the Saturday nation 5 years ago revealed that, “only 40 per cent of Kenyans are happily married, the rest are either unhappy or not sure how to describe their unions while some 29 per cent of married Kenyans admit their marriages are headed for the rocks, while 31 per cent say they are not certain whether they are in a happy or unhappy union” Due to the rising divorce rates the need to provide for how your property will be divided becomes even greater.
The fear of the unknown is reason enough for one to opt for a pre-nuptial agreement, a pre-nup is like insurance i.e. when you get a life cover, medical cover or accident cover one does not anticipate that this things will ever happen and in most cases they never happen, the insurance cover provides that peace of mind that in case of any unfortunate eventuality you are covered. A pre-nup therefore presupposes that in case a divorce happens then this how you shall divide property.
A prenuptial agreement is therefore a key component of proper financial planning and ensures that your property does not form the basis of a contentious issue as you get into marriage.
Advantages of having a prenuptial agreement include:
- Protects the separate property of spouses where one acquires property without the input of the other spouse.
- Protects property that has been acquired before a marriage.
- Provides for responsibilities and rights of the parties to a marriage, this however should not be contrary to the law.
- Facilitates smooth and faster divorce proceedings since property distribution has already been determined. One needs to note that property distribution is one of the things that makes divorce proceedings protracted, acrimonious and highly combative. A prenup helps to avoid such situations.
- Protects third parties who have an interest in property owned by a spouse.
In conclusion, the decision of whether to enter into a prenuptial agreement or not is a very personal decision. Each individual and couple is unique. Therefore, you should base your decision on your own unique situation and circumstances.
Written by
Mweresa Eugene Sudi
e-mail: sudi@salclaw.co.ke
SUDI & ASSOCIATES