Before ‘I do’: A reflecting on Pre-nuptial agreements in Kenya
Pre-nuptial agreements gained formal recognition in Kenya upon the enactment of the Matrimonial Property Act of (2013). The Act came into force on 16th January 2014 and repealed the Matrimonial Women’s Property Act of 1882 which did not provide for pre-nuptial agreements.
Notably prenuptial agreements have gradually gained recognition in Kenya as a methodological and economical way of setting the record straight, before entering a marriage on matters of property rights that could arise in the event of separation, divorce or death.
Legal framework governing prenuptial agreements in Kenya
- Article 40(1) of the Constitution of Kenya 2010 states that every person has the right either individually or in association with others to acquire and own property in any part of Kenya.
- Article 40(2)b of the Constitution of Kenya 2010 states that parliament shall not enact a law that permits the state or any person to limit or in any way restrict the enjoyment of any rights under this article on the basis of any of the grounds specified or contemplated in article 27(4). Marital status is one of such grounds under article 27(4) the Constitution of Kenya 2010.
- Section 6(3) Matrimonial Property Act provides that the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.
Grounds for Invalidating a Prenuptial Agreement.
Section 64 of the matrimonial Property Act gives courts the power to set aside prenuptial agreements (agreements made before entering marriage). If it is proven that the agreement was entered influenced by Fraud question or manifestly unjust.
Whether an unregistered person post-nuptial agreement overrides a registered ante-nuptial agreement
A gap is created for as long as the Kenyan law is Silent on post-nuptial agreements. However, Kenyan courts as illustrated below have stepped up to address the place of post-nuptial agreements in the subsistence of a marriage. The following cases can be referenced to respond to this question.
In the case of CYC v KSY (2014) eKLR the High Court confirmed and reference the post-nuptial agreement executed by the parties on deciding on the petitioner’s prayer for alimony pendente Lite.
In OKN v MPN (2017) eKLR the court of Appeal stated that under section 17(1) of the Matrimonial Act, the court has the power to decide on the distribution of property upon annulment of a marriage; that upon pronouncing a decree for divorce or nullity, the court could inquire into the existence of ante-nuptial or postnuptial agreements made by parties.
Conclusion
In view of the provisions of the Act of prenuptial agreements and the jurisprudence couples contemplating signing a prenuptial agreement should be mindful of the following points:
The question of child maintenance should be addressed prior to the signing of pre-nuptial agreements noting that the interests of the child take precedence over all other interests under Kenyan law. As was held in Radmacher vs Granatino (2010) UKSC 42, the agreement cannot be allowed to prejudice the reasonable requirements of any child of the family.
While there is no minimum time requirement for party to review and sign a pre-nuptial agreement under the Act, the position of common law appears to be that pre-nuptial agreements must not be entered less than twenty-one (21) days before the marriage.
The parties should seek independent legal advice as a prerequisite to signing the agreement to show that the agreement was freely entered by the parties without coercion or fraud. For instance, in the case of DB v PB (2016) EWHC 3431 (fam), the wife’s assertion of misrepresentation failed because it revealed that she had received independent legal advice in the United States advising her not to sign the agreement.
Authors:
Ms. Faith Gituma, a Legal Assistant/Trainee with the Firm and Mr. SM Kotonya, Partner and Head of the Litigation/Dispute Resolution Department.
This note does not constitute legal advice neither is it a Legal Opinion. For more information or any further queries, email us on info@kn-partners.com or telephone us on +254 20 2000431/+254717554430