Prenuptial agreements are governed by the Matrimonial Property Act in Kenya. A prenuptial agreement is a pact between parties who intend to get married. The contract establishes the financial rights and property of each spouse in case of a divorce. It provides the terms of how to treat earnings between the parties, ownership of assets, how to control property, and the division of property in the event of a divorce. In divorce cases, prenups usually take precedence over other rules on division of matrimonial property.
The Essence of Prenups
- When parties own disparate and substantial assets before they are married
When two individuals who want to get married have highly valuable assets, a prenups helps outline how the different assets will be divided upon their separation.
- When children from another marriage are involved
Prenuptial agreements before a subsequent or second marriage are essential for protecting the children who are coming from a previous relationship. The agreement will declare the assets that will go to the spouse and the children in the event of a divorce.
- When property is derived from inheritance or is a gift
A pre-nups helps to segregate inherited funds. It can also account for how a gift given during marriage will be subdivided in the event of a divorce.
- When outsiders have stakes in the assets or property
If there are third parties with interests in assets or property apart from the spouse, this can be listed as separate property in a prenuptial agreement. For example, a piece of real estate could be shared property between a spouse and his/her siblings. A prenuptial agreement listing this property as separate will avoid contention in the event of a divorce.
When prenuptial agreement Cannot Be Used
Prenups are not applicable when:
- Determining child custody
- Determining child support or;
- Defining personal matters like relationships with family
Amending prenuptial agreement
A prenuptial agreement can be amended by making an addition, deletion, variation, or correction. Prenuptial agreements are subject to the Laws of Contract. Therefore, any amendment needs to be in writing and done with the consent of the other spouse.