A pre-nuptial agreement cost a woman a share of her ex-husband’s property after the High Court ruled that she could not lay claim to a villa and an apartment in Malindi.
According to the agreement between the woman, code-named FZA, and the man, RB, any property in their names prior to the marriage would remain their personal property, and the other party would not be entitled to it.
High Court noted that the basis for the division of matrimonial property between spouses changes where there exists a pre-nuptial agreement.
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The court noted that the basis for the division of matrimonial property between spouses is contribution; thus, a party seeking a share must demonstrate how he or she contributed towards its acquisition or development.
However, the court further noted that the situation changes where there exists a pre-nuptial agreement between spouses, which outlines how their assets and liabilities will be determined in the event of the dissolution of the marriage.
The court also observed that the villa fitted the definition of a matrimonial home for the parties and, as such, constituted matrimonial property. Justice Mugure Thande, sitting in Malindi, ruled that the properties claimed by FZA were acquired by RB before their marriage. Therefore, under the pre-nuptial agreement, they belonged to the man.
“In terms of the provisions of the pre-nuptial agreement, the same remain the personal property of the respondent (RB) and the applicant (FZA) is barred from laying claim on the same,” ruled Justice Thande in her decision of August 8.
Justice Thande also ruled that FZA’s claim that the pre-nuptial agreement was unjust, or that she was coerced into signing it, was not supported by any evidence.
“The applicant clearly entered into the contract with independent legal advice, in the premises this case does not warrant the court’s intervention to correct an alleged injustice because it has not been demonstrated that the terms of the agreement were unfair to the applicant,” the court ruled.
The court further found that no basis had been laid by FZA for setting aside the pre-nuptial agreement, as she had not sought its nullification on the grounds she now claimed.
A beach facility in Malindi, a key holiday destination. File | Nation
FZA filed the case seeking a declaration that the villa formed part of the matrimonial property and that she be allowed to keep it. She also sought a declaration allowing her to retain the apartment.
Through her affidavit, FZA told the court that she and RB solemnised their marriage on July 16, 2013, at the Registrar’s office in Mombasa and lived together in their matrimonial home in Mambrui, Malindi, until the following year when they relocated to Italy.
She told the court that, due to cruelty, adultery, and desertion, she filed for divorce in 2020—a case still pending before a magistrate’s court. FZA argued that during the subsistence of the marriage, she contributed to the properties and that RB holds all title documents.
She also said that during the marriage, she contributed towards the matrimonial properties by undertaking domestic work, childcare, managing the family business and properties, and providing companionship and a favourable environment for RB to generate income for the family.
On his part, RB told the court that since marrying FZA, they had always resided in his home in Italy from 2014 onwards and that he had purchased the properties prior to their marriage.
RB further argued that at the time of their marriage, they entered into a pre-nuptial agreement on June 14, 2013, stipulating that assets, shares, and properties acquired in his name before the marriage would remain his property and that FZA would have no claim to them.[email protected]
