Court upholds binding nature of post-divorce agreements
The High Court has affirmed that post-divorce settlement agreements between spouses are legally binding contracts.
What you need to know:
- The High Court delivered verdict dismissing an application by Mr JJM who sought to overturn a 2017 Divorce and Settlement Agreement (DSA).
- The couple, married for over four decades, finalised their divorce in November 2024, had signed a DSA in 2017 in the presence of their adult son.
Post-divorce settlement agreements between spouses are legally binding contracts that cannot be unilaterally revoked unless fraud, coercion, or undue influence is proven, the High Court has affirmed.
The court delivered the decisive verdict dismissing an application by Mr JJM, a retired civil servant, who sought to overturn a 2017 Divorce and Settlement Agreement (DSA) that had allocated matrimonial properties between him and his ex-wife, Ms JLM, a former Kenyan diplomat.
The couple, married for over four decades before finalising their divorce in November 2024, had signed the DSA in November 2017 in the presence of their adult son, agreeing on the distribution of their jointly acquired assets, including prime properties in Nairobi, Ngong (Kajiado County) and Bungoma.
However, the husband later sought to invalidate the post-divorce agreement, claiming it was "skewed" against him. He argued that he had rescinded it via an email to their son in 2018 and demanded a fresh division based on financial contributions.
The court rejected his argument, ruling that his subsequent actions contradicted his claim of rescission.
Evidence showed he had relied on the same DSA to sell a Nairobi apartment allocated to him under the agreement, pocketing Sh12 million, which he used to buy a new home in Nakuru.
Post-nuptial agreements
"You cannot approbate and reprobate—accept benefits under an agreement and later disown it to avoid obligations," the judge stated, invoking the legal doctrine of estoppel.
The court emphasized that contracts remain enforceable unless vitiated by proven misconduct, and Mr JJM had failed to demonstrate any such wrongdoing.
The judge further clarified that post-nuptial agreements, though not explicitly recognized under Kenyan matrimonial law, are valid under general contract principles.
Courts will only intervene if a party demonstrates fraud or manifest injustice—neither of which was proven in this case.
"His state of mind at the time of signing, where he 'just wanted to go away', does not amount to coercion or duress in law," said the judge.
The court ruled that post-nuptial or separation agreements are enforceable under general contract law, citing a previous case where courts upheld that parties must honor mutually agreed terms unless fraud or coercion is proven.
The judge dismissed Mr JJM’s claim that his email to their son constituted valid rescission, ruling that contractual variations or terminations must be communicated directly between the parties—not third parties.
Additionally, it noted that dissatisfaction with terms does not justify voiding an agreement unless there is evidence of duress or misrepresentation.
The principle of estoppel played a pivotal role in the judgement in favour of Ms JLM. By benefiting from the DSA—selling the Lenana property and keeping the proceeds—Mr JJM had effectively affirmed the agreement’s validity.
"This is a classic case of a party seeking to have his cake and eat it, too. Equity will not permit such an unconscionable posture," reads the judgement.
The court said parties in a contract are barred from "blowing hot and cold" by accepting advantages while rejecting disadvantages.
"A court of law cannot rewrite contracts between parties. The parties are bound by the terms of their contract," said the court, in the ruling that sets a significant precedent, affirming that post-divorce agreements are not mere informal arrangements but legally binding contracts.
The court declared that the Divorce and Settlement Agreement dated November 4, 2017, was valid and binding.
The distribution of the ex-couple's matrimonial properties, including the Ngong home, shall proceed per the DSA’s terms.
