What is a prenuptial Agreement?

A pre-nuptial Agreement is an agreement entered into by a couple prior to marriage and they are intended to provide for how a couple will handle property rights and other related matters in the event of dissolution of the marriage.

In Kenya prenuptial agreements are legally provided for under Section 6 (3) of the Matrimonial Property Act, Cap 152  and will be enforced by Law. A party to a prenuptial agreement may apply to the Court to have the Agreement set aside and the court may set it aside if it determines that the agreement was influenced by fraud, coercion or manifestly unjust.

What does a pre-nuptial agreement contain?

A pre-nuptial agreement depending on each circumstance covers properties obtained prior to marriage, properties acquired during the subsistence of the marriage and how they shall be dealt with in the event of a divorce.

In the event that a couple enters into a prenuptial agreement, the same can be enforced by a court of Law and takes precedence over the provisions of Matrimonial Property Act regarding division of property.

For a prenuptial Agreement to be valid, it must in the first instance not be influenced by fraud, coercion or manifestly unjust. Hence both parties must enter into the agreement freely; it must be in writing and signed by both parties; it must be entered into before marriage, twenty one (21) days prior to the marriage as provided under Common law; there must be full disclosure of all assets by the couple; it must be fair and not grossly in favor of one party; information on ownership, management and division of all properties in the event of a divorce.

Can a couple enter into an agreement after marriage?

Yes they can, but in this case it will be a post-nuptial agreement and not a pre-nuptial agreement.

The Law is silent on specifically referencing post-nuptial agreements, however,  this lacuna has been addressed by the courts of law by providing that they are valid, in so far as they are entered into freely, without fraud coercion or it being manifestly unjust. For instance in the case of:

DNK Vs KM [2021] eKLR

The High Court in this case, upheld a post-nuptial agreement entered into between a husband and wife defining their property rights and provided that even though the same has not been specifically provided for under law, the agreement was valid as it was voluntarily signed and that there was no evidence of fraud, coercion or unfairness.

In our opinion, this is a good move by the Court as it solidifies the principles of contract law and the right of parties to freely enter into agreements in so far as they fulfill the contract validity requirements.

Conclusion

Couples should embrace Pre and post nuptial agreements, as they help to determine and structure property rights in the event of any conflicts in the future, which most couples usually do not anticipate especially when getting into marriage.

In case you want to enter into a prenuptial or postnuptial agreement, you can reach out to us on:

Email: info@kendikadvocates.co.ke
Website: www.kendikadvocates.co.ke
Tel: +254768028504

Disclaimer:
This information provided in this Article is intended as a general overview of the subject dealt with. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Kendi & Company Advocates is not responsible for any actions taken or not taken on the basis of this information.