Prenuptial Agreement Article

Posted on February 03, 2023

Can I really ask my future wife to sign a prenup? I don’t want my second marriage to get off on the wrong footing, but I want to protect my children

Prenuptial agreements are voluntarily entered into by couples intending to get married setting out their respective rights in relation to assets in the event of a divorce. Prenuptial agreements (Prenups) are effective in protecting certain assets, whether acquired prior to or after marriage, from being subject to division between a couple upon their divorce.

Those couples considering marriage but do not wish for the asset distribution provisions of the Matrimonial Property Act of Kenya to apply to them may choose to voluntarily enter into a prenuptial agreement. This occurs before marriage and it outlines their respective rights in relation to how assets would be split upon their divorce. Under the Matrimonial Property Act, in addition to the matrimonial home, all assets jointly owned and acquired during a marriage are considered “matrimonial property” and therefore, in general terms, such assets are divided equally between the divorcing parties or in accordance with the share held by each party.

A spouse may also acquire a beneficial interest equal to their contribution for any asset acquired by one spouse, whether before or after marriage if the other spouse has contributed to the improvement of that property. A contribution could be monetary as well as non-monetary. For non-monetary contributions, it is up to the court to establish the value based on evidence.

To set a marriage on a good path, it is important for future spouses to have honest conversations about their intentions, outline the property owned by each party and the property rights available for each future spouse if the marriage ends. It would also be prudent before getting married to assure a party who might be at a financial disadvantage of what they would receive should the marriage end in divorce.

Working together towards entering into a prenuptial agreement transparently and fairly helps build trust and a feeling of security.

Courts have recognised prenuptial agreements as valid and binding on parties. Valid prenuptial agreements can effectively be used to protect the rights of certain individuals and vulnerable family members including children from previous marriages which can reduce conflict in the event of a divorce.

For example, a shareholder owning a business with his children from a previous marriage could exclude his shareholding from the assets his future wife could claim during a divorce. This would protect the interest of his children by ensuring that they continue to run and benefit from the business without any interference from their stepmother.

Another example where a prenuptial agreement could be useful is when a man would wish to protect key assets acquired from a previous marriage. This is usually for the benefit of his children from that marriage to ensure that these kinds of assets are not subject to division in the event of a divorce.

The examples above illustrate how effectively prenuptial agreements can be used to protect the interest of children from a previous marriage and to avoid any potential conflict in the event of a divorce.

The drafting of prenuptial agreements requires careful consideration, careful drafting, full disclosure and sound independent legal advice for each party involved, such that there is no possibility of an agreement being set aside on the grounds of intimidation, coercion, fraud, the terms being manifestly unjust or a party not having understood the consequences of entering into such an agreement. Parties must also clarify the purpose of prenuptial agreements to eliminate the feeling that one party could be dishonest.

By Mona Doshi, Partner and Provia Odhiambo, Principal Associate at Anjarwalla & Khanna (ALN Kenya)