a. What is Prenuptial Agreement
A Prenuptial Agreement or “Prenup”is a written agreement that establishes the property and financial rights of each spouse in the event of a divorce. It sets out the terms of ownership of assets, how to treat future earnings in a marriage, control of the property of each and how the property will be divided in case of divorce.
b. Necessity
1. The divorce rate in our country has been rising steadily over the past 3 decades so divorce is now an acceptable reality.
2. Many people enter marriage with some debt, and their partners may want to protect themselves from those financial problems if the marriage ends.
3. Increased number of financially independent women who may want to protect their financial interest in a marriage.
4. Most people view a Prenup as a bet against the success of the marriage. But marriage is a contract and a Prenup is simply a way of putting guidelines on that contract.
c. Legal Backing
1. Article 40(1)(b) of the Constitution of Kenya, 2010 (the Constitution) provides for the right to own property in any part of Kenya either individually or in association with others.
2. 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 whereby a prenuptial agreement takes precedence over other principles of subdividing matrimonial property.
d. Validity of a Prenuptial Agreement
1. The agreement must be freely entered into.
2. The parties must have a full appreciation of the implications of the agreement.
3. It must not be unfair to hold the parties to their agreement in the circumstances prevailing.
4. Must be signed before the formalization of the marriage.
e. What should a Prenup Cover
A prenuptial agreement is most important when it comes to protecting pre-marital financial interests, such as retirement, investment funds, property and other finances and most importantly debts. It should also cover how sentimental items should be handled because these have strong emotional triggers that can often become the focal point of messy divorces.
f. Courts power to set aside a Prenup
Section 6 (4) of the Matrimonial Properties Act gives courts the power to set aside this agreements if it is proven that it was influenced by fraud, coercion or is manifestly unjust.
BY Eugene SUDI