My fiancé is demanding a prenup; is it binding in Kenya?
Prenuptial agreements, also known as prenups or antenuptial contracts, are entered into by couples before marriage to specify the terms of their property rights and potential support obligations in the event of divorce, separation or death.
What you need to know:
- Prenuptial agreements, or antenuptial contracts, are entered into by couples before marriage to specify the terms of their property rights and potential support obligations in the event of divorce, separation or death.
- The agreements are a methodological and economical way of setting the record straight before saying “I do.”
Dear Vivian,
I am currently planning my wedding, which is just two weeks away, and my soon-to-be husband has presented me with a contract outlining the details of our assets and how to handle them in the event of a divorce. My mother advised me to sign it, saying that prenuptial agreements are not recognised in Kenya and would have no consequences. I am uncertain about it, though. I would appreciate your legal perspective on whether prenuptial agreements are indeed recognised under Kenyan law and if I can choose to have one when married.
Nancy Waiganjo,
Nyahururu
Dear Nancy,
Prenuptial agreements, also known as prenups or antenuptial contracts, are entered into by couples before marriage to specify the terms of their property rights and potential support obligations in the event of divorce, separation or death.
In a nutshell, prenuptial agreements are a methodological and economical way of setting the record straight before saying “I do.”
Prenuptial agreements in Kenya do not have specific laws or statutes that govern them. However, they gained formal recognition through the Matrimonial Property Act. It is thus essential to dispel the misconception that prenuptial agreements have no consequences in Kenya.
On the contrary, a well-drafted and properly executed prenup can provide clarity and security for both parties. A prenuptial agreement can cover a range of issues, including the division of property and assets, spousal support and allocation of debts.
However, for a prenuptial agreement to be valid and enforceable in Kenya, it must meet several criteria. Firstly, both parties must enter into the agreement voluntarily, without duress or fraud. Full and honest disclosure of assets, debts and financial obligations is another crucial element.
Additionally, the terms of the agreement should be fair and reasonable. It is, therefore, advisable for each party to seek independent legal advice before signing to ensure a clear understanding of their rights and responsibilities.
Prenuptial agreements can be amended or revoked anytime, provided both parties agree to the changes.
While there is no minimum time requirement for a party to review and sign a prenuptial agreement under the Act, the position of common law appears to be that prenuptial agreements must not be entered into less than 21 days before marriage.
This timeframe ensures that both parties have sufficient opportunity for reflection, legal advice and understanding of the implications of the agreement. Therefore, signing it two weeks before your wedding may prove problematic when it is challenged in a court of law.
Postnuptial agreements, on the other hand, are entered into while in marriage. They have no legal backing in Kenya but are enforceable because they are contractual in nature.
Finally, signing a prenup or postnup is a decision that requires careful consideration and legal guidance. Understanding your rights, ensuring fairness in the terms, and seeking independent legal advice will contribute to a more informed choice.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
