My fiancé is a foreign investor with vast properties across the country. He recently insisted that we have a nuptial agreement before marriage to protect the property we have acquired individually. Our marriage will be conducted and registered in Kenya. I have yet to understand these agreements as I have always considered them a western concept. What should I do?
A nuptial agreement is also known as a marital agreement. Generally, nuptial agreements govern how couples regulate their financial affairs in the event of separation.
Prenuptial agreements have gradually gained recognition in Kenya as a methodological and economical way of setting the record straight before entering into a marriage. The Matrimonial Property Act, 2013, recognises that partners to an intended marriage may enter into an agreement before their marriage to determine their property rights.
This means that two consenting adults, who intend to marry and want to have their property rights set out in a definitive manner before saying ‘I do’, can pen down a legally binding agreement. Should you proceed with the agreement, it will only deal with property that is acquired in the course of your marriage.
I suggest you get your own independent legal advisor before signing the prenup or entering into one. This will help you avoid clauses that can be voided by a court of law. It will also provide you with fairness.
For example, a prenuptial agreement will not provide for, or limit child support or rights related to your children. Your prenup must be properly drafted and witnessed.
If a prenup is hastily drafted, with either partner not having independent legal representation or one partner not signing, it can be invalidated as not being a proper agreement.
Additionally, a prenup should not promote divorce or separation. Therefore, a clause stating ‘if you cheat on me, I can get a divorce…’ is not allowed. This is because clauses on how to divorce shall be ruled by the court as a scheme aimed to defraud the other partner.
The Matrimonial Property Act, 2013, clarifies that you may apply to the court to set aside the prenup and the court may set it aside if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.
If a prenuptial agreement seems extremely lopsided, with one party getting everything and the other receiving nothing, it could be set aside.
While there is no minimum time requirement for a party to review and sign a prenuptial agreement under the Act, the position of judicial precedents appears to be that prenuptial agreements must not be entered into less than 21 days before the marriage.
The writer is an advocate of the High Court of Kenya and an award-winning civil society lawyer; [email protected]
