Contrary to common misconceptions. A prenuptial agreement/prenup is not only for rich people. It is a document to be considered by any person owning assets at the time they are seeking to enter into a marriage – whether marriage governed by a religious system or under civil law. It may also be considered by spouses who make non-financial contributions to the economic security of a family during the course of a marriage.

Prenuptial agreements are recognised under the Matrimonial Property Act of Kenya which provides that an agreement may be entered into in order to clarify the property rights of intended spouses.

What is a prenuptial agreement?

This is a written agreement between two intending parties to a marriage setting out what shall be deemed separate and matrimonial assets and how these assets are to be split upon a divorce or separation. The agreement can also address issues of maintenance that is what is the entitlement of each spouse to maintenance in the event the marriage ends. The document is elaborate and can address factors such as duration of marriage and degree of effort as some of the bases for entitlements of property and maintenance in the event of the end of the marriage. The other common name used for a prenuptial agreement is a prenup.

What is the law governing a prenuptial agreement?

The main law governing prenups is the Matrimonial Property Act, 2013. Section 13 that provides that: Subject to this Act and any agreement between the spouses before the marriage, marriage does not affect the ownership of property other than matrimonial property to which either spouse may be entitled, or affect the right of either spouse to acquire, hold or dispose of any such property.

The other law governing the enforcement prenups is the Matrimonial Property Rules 2022 that set out the procedures in matrimonial property causes in court where one may bring a case to enforce a prenup.

The marriage Act 2014 is also a relevant law when drafting a prenup.

When is a prenup drafted?

This is drafted before the marriage. It is advisable to do this some months before the marriage to avoid allegations of duress of signing that may vitiate the validity of the agreement that may be made if the agreement is drafted and signed to close to the marriage date. Courts in various jurisdictions have opined that an agreement signed too close to the marriage date may raise issues of duress as the party with weaker bargaining power can claim they didn’t have time to review the agreement and its implications or that they did not have ample time to get a suitable lawyer to help them review and negotiate the agreement.

Why Get a Prenuptial Agreement?

The purpose of a prenup is essentially to protect your separate assets from being considered matrimonial property and to delineate how to share assets acquired after marriage in an amicable way and reduce the chances of fighting a contested matrimonial property case after divorce. The particular reasons and circumstances are highlighted below:

You are coming into a marriage with assets of your own whether big or small and you would like to retain these as your separate assets during and after the marriage.

You have children by a previous relationship/marriage and want to protect these children’s rights to your assets obtained prior to marriage by explicitly removing said assets from any pool that may be (mis) construed as being matrimonial property in a subsequent marriage.

You want to restrict leeway for litigation on matrimonial property during any subsequent divorce by presenting to the court a clear delineation of the intended spouses’ assets and income thereon; and revenues that may be considered as sole property as opposed to matrimonial property. This will make it easier for the court to divide assets upon divorce, as parties already voluntarily signed a binding agreement on both separate and matrimonial assets.

You want to mandate continuance of your given lifestyle in the event the marriage comes to an end, for instance by stipulating the amount of maintenance you are entitled to in instances such as having given birth, participation in family business, duration of the marriage etc.

You are in a polygamous marriage and intend to marry a new wife. You, your intended spouse and your existing spouses may clarify matrimonial property issues in the context of a prenuptial agreement and specifically delineate the assets that will be considered matrimonial property together with the subsequent wife.

How to Draft a Prenuptial Agreement?

Koya and Co. Advocates have good experience in drafting prenuptial agreements that comply with the Kenyan Law on marriage and matrimonial property.

A prenuptial agreement should be drafted well in advance of an intended marriage ceremony for 2 reasons:

Firstly, to give the intended spouses enough time to agree on details and consider implications prior to agreeing to particular terms on assets and to keep a clear head as opposed to rushing prior to the marriage ceremony.

The second reason is to give the other spouse time to obtain independent legal counsel on their rights under the agreement and therefore avoid claims of duress or that a spouse was pressured to sign the agreement in breach of their rights as spouses in a marriage.

When drafting a prenuptial agreement, it is important to be forthright on property rights and interests to avoid drafting an unclear or vague prenuptial agreement that may be vitiated for lack of clarity of the intended spouses’ intentions. This is not a time to be silent or sweep issues of concern regarding matrimonial assets under the carpet for fear of offending your intended spouse. For that reason, you want to start ‘negotiations’ earlier rather than later in your path to the marriage ceremony.

One explanation that may encourage your betrothed to enter a prenup is to explain that the agreement is made as a contingency where things go wrong in the marriage (which is a common enough occurrence in reality) it avoids the headache of protracted litigation and bitter feelings that can arise in a contested litigation regarding property. A fairly and thoughtfully negotiated prenup promotes harmony and mediated settlement in the event things go wrong in the marriage and leaves both parties feeling happier that their rights are clear and they will not be disenfranchised in the event of divorce or separation as both parties are able to sign an agreement that sets out their property rights even before the marriage and they rely on this document upon divorce.

You can negotiate your interest on the amount of maintenance to be received as well as your stake in matrimonial property in creative ways e.g., linking proposed maintenance to the number of years married. Stipulate what shall be matrimonial property; stipulate how income from the joint assets shall be spent or reinvested; discuss commingling of assets e.g., where matrimonial assets enter into separate property. Stipulate what types of contribution raise an inference that an asset or business is matrimonial property e.g. a business that has solely been owned in which your intended spouse subsequently begins to work with you etc.

Prenuptial Agreements and Wills

It is also prudent to draw a Will once you have a prenuptial agreement or review your existing Will to avoid conflicting bequests under your Will, vis-a-vis the prenuptial agreement. The Will can then be periodically reviewed upon purchase of any significant asset in the course of marriage to ensure intentions under the Will reflect the rights already created under the prenuptial agreement.

Independent Legal Counsel

It is important that your intended spouse understands the binding nature of prenuptial agreements and gets their own lawyer to advise them on their interests and rights so as to reduce instances where a contract is rendered unenforceable or parts of it rendered invalid on allegations that the intended spouse did not understand the contract or claim they were forced by circumstances to sign the contract as the marriage date was approaching.

Validity of Prenuptial Agreement in the Event of Annulment

In the event a marriage is annulled, parties can look to the court to decide whether an agreement made in contemplation of a voided marriage is binding to parties.

Examples of Clauses in a Prenup

The following are some of the issues that are addressed in a prenup

1. Schedule of separate assets
2. Identity of businesses run by parties and role of spouses in said businesses and what it means;
3. Identity of the parties. This means the legal name, contact details of the spouses who are intending to marry after signing the agreement;
4. Governing law of the agreement. This means the laws of Kenya or any other jurisdiction being used to determine disputes and the meaning of clauses under the prenuptial agreement;
5. How disputes are to be resolved and the courts having jurisdiction. For instance, you can state that parties will first try out of court dispute resolution and then say that if that fails the courts of Kenya will have jurisdiction;
6. Definition of matrimonial property and how this is to be divided upon the end of the marriage;
7. How separate and matrimonial assets acquired after the marriage may be delineated;
8. Address property in trust and its exclusion or otherwise from the ambit of the agreement;
9. Address the issue of wills and inheritance;
10. Spousal maintenance entitlement of any spouse;
11. Commingling of separate assets and matrimonial assets. The impact of mixing these two classes of assets and how property that started as one class can end up in another class of assets;
12. Debts of the parties whether joint or separate;
13. Etc