The Kenya Marriage Act (2014) provides for settlement agreements during divorce and separation proceedings. While parties cannot collude to present a divorce petition (prohibited under Rule 6 of the Marriage Act Rules 2020), the Marriage Act allows parties to enter into an agreement on spousal maintenance and the Matrimonial Property Act similarly allows parties to enter into an agreement on the division of matrimonial property. Additionally, under the Children’s Act of Kenya, parents who are divorcing are allowed to enter into a parental responsibility agreement, which will become binding when the court issues an order allowing the parental responsibility agreement.

This article deals with the property division and spousal maintenance that parties may agree on in the course of divorce proceedings, and these agreements tend to be more favourable to the divorcing parties as each side’s interests are taken care of in a more balanced way than a contested process litigated in court would allow for.

The terms of a Maintenance Agreement should provide:

1. Amount of maintenance to be paid by one spouse to the other during the divorce (if any) and after the divorce decree is issued or for as long as the separation continues (as the individual circumstances may be).
2. The maintenance terms should set out whether the maintenance is paid in a lump sum or instalments.
3. The circumstances under which the agreement to pay maintenance will lapse; at a minimum if the spouse receiving maintenance remarries, usually the maintenance amount will stop.
4. What happens when the payments fall into arrears?
5. What happens when income of either party changes?
6. Impact of extra financial help made by one spouse to the spouse receiving spousal maintenance.

The terms of the division of property agreement include:

1. The agreement should clearly delineate what is joint property and separate property.
2. Outline whether there are any assets that the other party has a beneficial interest in.
3. If parties were running a business together, the agreement should address what proportion is owned by either party and how the parties may transfer or liquidate their interest in the business to the other party if at all.
4. The parties should then address the division of joint/matrimonial property; whether any party will receive cash payments in order to give up their share and how this share shall be valued. E.g., if one spouse has a smaller stake in the family home.
5. The agreement may also address joint liabilities incurred during the marriage and after the separation before the marriage is finally dissolved. Set out what proportion of the liabilities shall be borne going forward and any restrictions on either party entering any contracts that may add further liabilities to either party.
6. The agreement will also set out if either party will hand over any of their separate property in settlement for maintenance obligations by identifying the asset, any income that may be derived from the said asset to support the maintenance of a party and the process that will be followed to transfer ownership or possession of the said asset

Factors Kenyan Court Considers in Approving Divorce Settlement Agreements

It is important to note that under S 80 of the Marriage Act, the court has power to vary settlement agreements only if satisfied there has been a material change in the circumstances of the parties, therefore one should hire a skilled lawyer to draft the said agreement to reduce the impact of such variation on parties’ rights as initially drafted and envisaged under the agreement.

The lawyer prior to drafting, will assess income of the parties, earning potential, parties’ assets and future scenarios in order to craft a solid agreement for you.

Other general provisions that may be contained in the agreement include:

1. The court with jurisdiction.
2. Modification of the agreement.
3. Cooperation by parties in the application of the divorce settlement agreement.
4. Lapse of obligations and rights of parties to the divorce settlement agreement.

Conclusion

It is encouraged to advise the other spouse that they have the right to seek their own legal advice on the agreement to avoid accusations that you coerced or bullied them to sign the agreement. This is to remove inferences that the agreement is unfair or unconscionable to one party, for instance the poorer spouse.

Once parties have entered a divorce settlement agreement, they can present it to the court during the divorce proceedings and ask the court to adopt the agreement as binding and if the court does so, this agreement will have the force of a court order and all parties will be required to abide by its terms. A divorce settlement agreement is a very useful agreement that can result in a more amicable and favourable divorce process for both spouses.