Thinking of prenup deal? Everything you need to know

Prenuptial agreement

A prenuptial agreement establishes rights to property and support in the event of divorce or death.

Photo credit: Shutterstock

What you need to know:

  • A prenup has a limitation of its jurisdiction within the country of its origin.
  • In Kenya, prenups do not have any formal laws or statutes that govern them.

“...I’m gonna love you forever, forever and ever amen…” (Repeat)

These are lyrics from a song by American country music singer Randy Travis, which demonstrates how one can be so immersed in love, they assume it will last forever.

But the reality of life is that sometimes what was meant to last forever, comes to a painful end.

Even the love-struck Randy who penned the sensational love song, parted ways with his first wife of 19 years.

From celebrities to a neighbour, a friend, or a loved one, we all know enough couples who started on a high note before the marriage came tumbling down like a pack of cards.

With that sobering reality, is it time couples started embracing prenuptial agreements (prenup) to make property issues and child custody issues less messy?

Evidence shows that divorce numbers are on the rise with more couples separating and divorcing after the collapse of the union.

According to data from the Kenya National Bureau of Statistics (KNBS), divorce rates amongst married people increased from 10.5 per cent in 2015 to 17.7 per cent in 2020.

The data also indicates that as of 2019, 5.5 per cent of Kenya’s 12 million households were headed by divorcees or persons who had separated from their spouses totalling 661,628 households.

Research shows divorce stress is intense and overwhelming and is akin to the pain that comes with the loss of a friend or loved one.

There are property, debt, and custody issues to be dealt with which adversely affect children’s well-being. 

This is where prenuptial agreements come in. This begs the question, just as you plan for the success of the marriage, given the reality of divorce, should you also plan for what next in case the marriage fails?

Second, if you are planning to go this way, what do you need to know to make an informed decision?

Third and most importantly, are prenuptial agreements legally recognised in Kenya?

To begin with, the Merriam-Webster dictionary defines a prenuptial agreement as “an agreement made between two people before marrying that establishes rights to property and support in the event of divorce or death.”

Clarion Solicitors Law firm defines a pre-nuptial agreement as “an agreement entered into by a couple – preferably in good time before a marriage – which sets out how assets will be divided if the divorce or the marriage is dissolved.”

The Law firm explains: “…we hope they are never needed but they will be there when the marriage ends.”

So what do Kenyans feel about prenups?

Lavender Kasaya, who is in her late 20s and hopes to get married soon, says they are crucial backup plans in case the union fails to work.

Financial autonomy

“Prenups are important. The marriage institution isn’t what it was before, and failing to face this fact is being blind to the truth. Gone are the days when marriage was taken as a serious and sacred thing just based on love and companionship. Today, a lot of relationships and marriages are transactional, and this creates the need for one to protect themselves.”

Lavender notes that even though most times this document is seen as a preserve of the wealthy, it should also be for those with modest assets.

“This is because what might seem small or modest to someone else, might bear huge significance to another. Prenups are also a way to preserve the financial autonomy that each party brings to a marriage. It is not about greed or lack of trust but respect,” Lavender stresses.

She says prenups are also not just about the end of a marriage and assets, but a roadmap for the couple to navigate the unchartered waters of divorce.

“Finances are always a difficult topic to broach in a relationship. Having a third party, while drafting a prenup, can help to address critical questions, and is an opportunity for the couple to talk about financial rights and obligations, setting clear expectations from the get-go. Ultimately, this will lead to fewer hurdles in case of conflicts. Having a written binding agreement when things are good, means you have a solid structure to lean back on when things take a turn for the worst.”

But perhaps most importantly, Lavender believes that prenups can protect children against messy custodial wars.

“It’s about putting the best interests of the children first, who are oftentimes the most affected if a marriage fails,” she points out.

“A prenup will ensure the children’s needs are met, no matter what happens, and that they enjoy a sense of normalcy and stability.”

Lavender however acknowledges the low uptake of the same because of the conservative culture in Kenya.

She however says these uncomfortable and difficult conversations are a sign that some couples are warming up to the idea.

Prenuptial agreement

Prenup agreements can protect children against messy custodial wars.

Photo credit: Igah | Nation media Group

“How one approaches this issue depends on their perception. Instead of seeing it as a sign of mistrust, I see it as a symbol of mutual respect and understanding. It’s about being realistic and responsible,” she says.

Joseph Kamau, also in his late 20s has a more conservative approach.

“Prenups aren’t for everyone, and that is okay. I believe marriage is not about a legal document, but about open conversations. If for instance, you have conversations about finances up front, you will build a solid foundation, as opposed to relying on a prenup.”

For Joseph, marriage is about sharing a life, responsibilities, and assets.

“When you marry someone, you’re choosing to share your life with them. And that includes your financial side,” he says.

Joseph however acknowledges that prenups though not a necessity, can provide clarity and protection for a couple if divorce happens.

“Every couple is different. What works for one couple might not work for another. However, it is important to be honest about issues that may cause friction, like debts and inheritance.”

Joseph also points out that not having a prenup doesn’t mean you’re not thinking about the future.

“Planning for the future is important,” he says, “but there are many ways to do that. A prenup is just one of them.”

To shed more light on the legal aspects of a prenuptial agreement, Parenting spoke to Erick M Keli, the founder and managing partner, Keli, Kamura and Machogu Advocates.

What is a prenup and what are its legal implications?

A prenuptial agreement is a legally binding agreement that is signed and agreed to by two people who intend to get married, on division of the assets and liabilities upon separating.

The validity of a prenup comes from having two consenting adults agreeing to its conditions and abiding by its terms. The same can be modified and revoked before people get into a marriage and not afterward.

A prenup has a limitation of its jurisdiction within the country of its origin as there are laws that can assist in enforcing and protecting it.

How are assets and debts handled in a prenup, and does it cover future inheritance?

Prenups explain how assets and debts of each individual are to be categorically handled as per the instructions given by the consenting parties.

A prenup can protect one from the other person’s debts if in the clauses it is indicated clearly that the same should not be effected. A Prenup is limited to what parties agree to whether current or in the future.

A prenup also stipulates the terms and conditions of a particular business owed and/or run by the couple and how it shall devolve upon their divorcing or amicably going separate ways.

How does a prenup affect child support and custody agreements?

Uptake of prenups

A prenup acts like a Parental Responsibility Agreement which covers the best interest of the children, especially maintenance and custody.

A prenup can protect the interest of the children of the same couple with different partners as and when agreed to by the current couple.

Under what conditions can a prenup be challenged in court?

A prenup if deemed unfair as per the terms indicated can be challenged. The success rate is dependent on the argument presented.

A prenup being a legal document is preferable to be drafted and prepared by a lawyer who understands the dynamics of the couple intending to get married and the applicable laws.

In Kenya, prenups do not have any formal laws or statutes that govern them. However, they gained formal recognition through the Matrimonial Property Act of 2013.

What trends have you noticed with regard to prenups?

In countries outside of Kenya, prenups are being taken into consideration by couples planning to get married.

However, in Kenya, this is a practice that is yet to be fully embraced. The uptake of prenups is slow but gradual as people are not too familiar with it.

In the African culture, a prenup would be deemed as a disgrace or a non-existent entity and not to be embraced nor considered as an instrument to secure the future of a couple.