Pre-Nuptial Agreements in Kenya

Published on June 15, 2023, 1:32 p.m. | Category: Wealth and Private Clients

Introduction

The intention of most people getting into a marriage is that only death will do them part. Unfortunately, we live in a broken world and divorce for various reasons occurs bringing to an end these well-intentioned marriages despite the parties’ best efforts.

The law has evolved to allow parties who intend to contract a marriage to have peace of mind that their assets will be protected in the event of dissolution of their marriage.

Such agreements set out how properties, investments, finances and even liabilities will be divided should the parties choose to separate and covers everything from income, pensions, inheritances, gifts received during the wedding ceremony even vehicles.

Definition of a pre-nuptial agreement

The Matrimonial Property Act (2013) provides under Section 6 (3) that parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.

This provision of the law is the very definition of a Pre-nuptial agreement.

For those already in marriages and would like to determine their property rights, kindly find our article on Post-Nuptial Agreements.

Why should I enter into a pre-nuptial agreement?

Everyone has a reason for why they would want a pre-nuptial agreement. Entering into a pre-nuptial agreement does not mean that the couple are not committed to their intended marriage.

That being said, in the unfortunate case where the marriage will be dissolved, having a well done pre-nuptial agreement may save the parties a long litigious process and help preserve their interests. It is important to have a well versed advocate handle the preparation of such pre-nuptial agreement.

It is important to note that where there is no pre-nuptial agreement, the parties and their acquisitions will be subject to division as provided under the Matrimonial Property Act, 2013 and the principles of division of matrimonial property shall apply.

A pre-nuptial agreement may be beneficial where;

The parties would like to clarify their financial rights and obligations.
Either of the parties has substantial wealth and would like for the same to remain separate from the marriage.
There is substantial debt owed by either party to the marriage and its liability needs to be clarified even after marriage.
There is an intention or possibility of one of the parties being a stay-at-home parent.
Define spousal support/alimony in case of separation or divorce.
One of the parties has substantially greater assets or income than the other.
One or both of the parties wishes to protect assets they owned prior to the marriage e.g. an inheritance or family heirlooms.
It would be beneficial for the parties to define what is “matrimonial property” or “non-matrimonial property” e.g. where one of the parties has registered business assets in their name.
One or both of the parties have children from a previous marriage or relationship and wish to protect assets for purposes of succession planning.
One or both of the parties have property in a different jurisdiction.
One or both of the parties want to use it as an Estate Planning tool in addition to a will or family trust . You can read more about this in our article Differences between wills and family trusts.

Are pre-nuptial agreements recognized by Kenyan law?

Yes, they are provided for under Section 6 (3) of the Matrimonial Property Act, 2013.

Such agreements can only be set aside by a court where it is determined that the agreement was influenced by fraud, or coercion or is manifestly unjust.

Best practice when preparing a pre-nuptial agreement

Both parties need to have sought independent legal advice before signing the agreement.
Full financial disclosure by both parties- this boils down to a question that may arise of whether both parties had sufficient information to make an informed decision on whether to enter into the agreement and the implications.
Ensuring that the terms of the agreement are substantially fair.
No undue influence, coercion, duress and economic duress when negotiating and entering into the contract.
No fraud or misrepresentation by a party in relation to the agreement.
Ensuring that the elements that would make a contract valid are present including having a sound mind and the intention to be bound.
Adherers to the law and public policy in terms of the contents e.g. the court is likely to set aside an agreement that forbids one party from seeking court intervention for the maintenance of a child.
Ensure such agreement adheres to the laws of any jurisdictions the parties would want that agreement to be enforceable.
Such agreements should we signed at least 21-30 days before the wedding. An agreement signed too close to the wedding may raise suspicion that one of the parties did not have sufficient time to consider the aspects of the agreement and had to sign in order for the wedding to proceed.

Conclusion

The nature of pre-nuptial agreements and the why behind it seems to spark a lot of debate and being a family matter where there is a lot more to consider including the intention for such contract, the circumstances at the time of signing such agreements and the exact provisions, it is clear that having a competent family law advocate guide parties through this process is of paramount importance.

Having competent representations covers the parties to avoid pitfalls that could see their conciliatory efforts go to waste for missing a crucial consideration which then renders the agreement voidable (capable of being nullified.)

How can we help?

The Wealth & Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills and experience on matters of family law including but not limited to Pre & Post Nuptial Agreements, Children matters, Adoptions and Guardianships, Succession & Probate Matters, and Divorce/ Separation/ Annulment and Matrimonial Property Matters spanning across the East African Region and other International Regions. We are practical and innovative in our approach and offer quick turnaround timelines.

We offer an edge to our clients based on our legacy of having handled various delicate family matters over the years and therefore are well capable of guiding you through any matter dealing with Family disputes.

Should you have any questions regarding the subject of pre-nuptial agreements, or related topic, please do not hesitate to contact us on law@cmadvocates.com or dgichuru@cmadvocates.com