Prenuptial Agreements in Kenya came to be as a result of Article 40 of the Kenya Constitution which provides for protection of the right to property in any part of Kenya. Article 40(2)(b) when read together with Article 27(4) of the Constitution specifically imparts that Parliament cannot enact laws that permit the State, whether directly or indirectly, to limit/ restrict the enjoyment of any right to property against any person on any ground including, marital status.

Consequently, the enactment of the Matrimonial Property Act, 2013 Laws of Kenya (hereinafter, “the Act”) brought rise and acknowledgment to the prenuptial agreements in Kenya under Section 6(3) of the Act. It states, “Parties to an intended marriage may agree to their marriage to determine their property rights”.

What is a Prenuptial Agreement?

An agreement/contract that is entered into by a couple prior to a marriage that establishes their control of their legal and financial rights over their respective properties, in the event of a divorce.

Depending on the construction of the prenuptial agreement, it covers any assets acquired whether before or after the marriage, from being divided between a couple upon divorce.

This agreement takes priority over other rules on the subdivision of matrimonial property.

Common Instances that give rise to Prenuptial Agreements

  • Protecting any future inheritance that may be acquired during the marriage;
  • Protecting family-owned property, for example, shares in a family-owned company or family heirlooms to ensure that the property remains in the birth family;
  • If there are child(ren) from a previous relationship, the prenuptial agreement can specify the assets that will be set aside for the child(ren) in the event of a divorce. Furthermore, prenuptial agreements can be created where there is a desire to ensure that the child(ren) inherits some of your property as these agreements can also be deemed useful to secure assets in the unfortunate death of a spouse;
  • Protecting any assets that were acquired prior to the marriage;
    Protecting any assets that may be acquired during the subsistence of the marriage;
  • Determine each party’s roles and responsibilities to their children in the event of a divorce. Pre-nuptial agreements however cannot be used to determine custodial arrangements of the child(ren) or child support payments in the event of a divorce; and
  • Protecting assets from debt that was incurred by a partner, whether before the marriage or during the marriage.

Ingredients of a Prenuptial Agreement

  • Must be entered into before marriage;

It is however recommended that the Prenuptial Agreement is not signed too close to the wedding date as it may be considered as putting undue pressure. Instead, both Parties should be aware of the terms early enough and be allowed to understand and appreciate the circumstances of the legal and financial disclosures made by the other party. Under common law, prenuptial agreements must not be entered into less than twenty-one (21) days before the marriage;

  • Both parties must freely enter into the Prenuptial Agreement;
    Both parties must have an understanding and full appreciation of the implications of the Prenuptial Agreement;
  • The Prenuptial Agreement must not be unfair or grossly unequal between the Parties. The division of the assets should not be skewed too heavily in favor of one party and cannot be unconscionable;
  • Parties should make full disclosure of all their assets including those that they intend to exclude from matrimonial property under the Prenuptial Agreement. If there are any assets that are shared between either one of the parties and a third party, it is important to disclose these assets as separate property;
  • Should not adversely affect a party’s child-support obligations, in the event the couple has children;
  • Should contain information and directions of what happens to each asset and liability mentioned in the prenuptial agreement in the event of a divorce; and
  • Cannot violate any criminal laws. For instance, where a prenuptial agreement is signed to defraud creditors of either or both spouses.

In conclusion, it is highly recommended to seek independent legal advice for both parties to a prenuptial agreement to avoid an instance where the agreement may be set aside on the grounds of duress, undue influence/pressure, or fraud. Finally, parties may amend the terms of a prenuptial agreement by variation, addition, correction, or deletion. However, any amendment must adhere to the principle terms of the contract and must be in writing, and with the willful consent of both parties.

Please note that this legal article is for information purposes only and should not be relied upon without legal consultation. Should you have any questions, please feel free to contact us.