A fairytale often has a happy ending; the dream for most couples before marriage. Nonetheless, not all marriages have happy endings as some end up in divorce Courts followed by ugly matrimonial property causes. Acknowledging the possibility of such a harsh reality, some couples consider entering into prenuptial agreements, commonly referred to as prenups. These kind of agreements enable them to have control over what happens to their property in case their marriages come to an end.[i]
This article discusses the legal regime governing prenuptial agreements and their place within Kenya’s jurisdiction.
The Black’s Law Dictionary defines a prenuptial agreement as,
‘an agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse. Also termed antenuptial agreement; antenuptial contract; premarital agreement; premarital contract; marriage settlement. – Sometimes shortened to prenup.’[ii]
In other words, it is a contractual agreement entered into by a couple in contemplation of marriage in order to make provisions for the division of property in case the marriage comes to an end.
The practice of making prenuptial agreements dates back to ancient times as documented by various scholars. According to Stoner and Living,
‘People have been making prenuptial agreements dating back to ancient Egyptian times and the practice has existed in the Anglo-American tradition for centuries, although previously the parents of the bride and groom negotiated these agreements.[iii]’
Another example of these form of agreements can be seen in Ketubah,which is a Hebrew contract of marriage that dates back to over 2000 years ago and is construed as one of the legal documents that gave rights to legality and finances of women in marriages. The agreement is similar to the aqd nikkah in Islam.[iv]
However, despite this protected recognition of prenuptial agreements in practice; the legal recognition of such agreements both in English Common Law and codification through legislation has seen a slow evolution with few recent landmark decisions and enactments in recent years.
In England, the Supreme Court in the Case of Radmacher v Granatino upheld the decision of the Court of Appeal and held that that it would be natural to infer that parties who entered into a nuptial agreement to which English law was likely to apply intended that agreement to be binding.[v] However, the Court wields overriding discretion when considering the weight to be attached to the prenuptial agreements. The Supreme Court in the instant case set out the following factors that Courts should consider when determining the financial obligations of parties to a Prenuptial Agreement: –
(i) The agreement must be freely entered into.
(ii) The parties must have a full appreciation of the implications of the agreement.
(iii) It must not be unfair to hold the parties to their agreement in the circumstances prevailing.[vi]
In Kenya, the Constitution 2010 recognizes that every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya.[vii] Further, the Constitution advances that parties to a marriage are entitled to equal rights at the time of, during, and at the dissolution of the marriage.[viii] It was only after 16th January 2014 when the Matrimonial Property Act[ix] came into force did Prenuptial Agreements gain formal recognition of the law. Fundamentally, Section 6 (3) and (4) of the Act introduces and recognizes prenuptial agreements and maintains that parties can enforce the same as long as they were not obtained via fraud, coercion or if the same is not manifestly unjust. To this end, the Court has the powers to set aside such an agreement if it determines that the agreement was influenced by fraud, coercion, or is manifestly unjust.[x] Despite the recognition of Prenuptial Agreements in Kenya, the legal framework and jurisprudence surrounding the enforceability of Prenuptial Agreements is still young and developing as there are very few cases on the same.
Essential Factors to Consider Before Entering into a Prenuptial Agreement
Disclosure of Assets and Liabilities: Given the fiducial nature of nuptial relationships openness and disclosure of each party’s assets and liabilities is of utmost essence. Without the said disclosure it is problematic to create a legally binding agreement, especially when material facts have been concealed. On this note, the couple needs to disclose all material information regarding their individual net worth.[xi]
Legal Counsel: It is always important to seek legal advice in all transactions that one is undertaking not only to abide by the law but also to safeguard your legal interests and rights with respect to the relevant transaction. This is particularly important, especially where prenuptial agreements are involved.[xii] In fact, it is of essence that each party obtains independent legal advice as opposed to joint counsel so as to avoid any complications and conflict of interests likely to arise if the couple obtains legal advice jointly.
Reasonable Time: Parties to a potential Prenuptial Agreement should be accorded ample time to consider the terms of the agreement and even seek legal advice from the date of the agreement to the date of marriage. This is to avoid unnecessary pressure likely to cause duress.
It should be noted, that Prenuptial Agreements only apply where the Matrimonial Causes Act[xiii], comes into play. A party intending to rely on the same must, therefore, establish that there was a marriage between the parties and that the two parties are no longer husband and wife through a dissolution of marriage, formal judicial separation, or a pending cause in court for the same. This was the position as held in the case of PMK V. PRM  eKLR Civil Case 7 of 2016.
Despite the glairing lack of sufficient local jurisprudence on Pre-nuptial agreements, the development of the legal regime governing prenuptial agreements is imminent. Accordingly, it is important for Kenyans to explore understand and build on the enabling legislation on prenuptial agreements by looking towards other jurisdictions, such as the United States, which jurisdictions enjoy historically developed legal regimes and jurisprudence of pre-nuptial agreements.
* Anthony Mutugi & Raude Nixon are Advocates of the High Court of Kenya.
NOTE that this article is for purposes of general advice and SHOULD NOT be relied upon without seeking specific legal advice. For queries and legal advice, contact the authors via firstname.lastname@example.org and email@example.com respectively.
[i] Australian Law Dictionary
[ii] Henry Campbell Black, Bryan A. Garner, Becky R. Mc Daniel David W.Schultz and West Publishing Company, Black’s Law Dictionary, (West Publishing Co., 2009), 1301.
[iii] Stoner, K. and Irving, S., 2016. Prenuptial Agreements: How to Write a Fair & Lasting Contract. Nolo.
[iv] Michelle Greenberg-Korbin, Civil Enforceability of Religious Prenuptial Agreements, (Columbia Journal of Law and Social Problems,1998), 359.
[v] Radmacher v Granatino  UKSC 42
[vi] Ibid, par. 169, p. 59-60.
[vii] Article 40 of the Constitution of Kenya 2010.
[viii] Article 45(3) as above.
[ix] Act No. 49 of 2013.
[x] See Section 6(40) as above.
Also see Women Lawyers Kenya (FIDA) v Attorney General & another  eKlr-
[xi] Radmacher v Granatino, Par. 174.
[xii] Brack v Brack  EWCA Civ 2862,  All ER (D) 18
[xiii] Cap. 152 Laws of Kenya