Considering a prenup? Here's everything you need to know

You might end up losing your property even after signing a prenuptial agreement. This is mainly because some partners can be crafty. Others will include or introduce clauses that give them an upper hand before, during and after your marriage. But you can avoid all this by knowing how to draft a proper and legally binding prenup. According to our legal experts, this is what to include and what not to include:

Caroline Maina-Kungu, an Advocate of the High Court and the managing partner in charge of Corporate and Commercial practice at CMK Associates

Are prenups recognised by Kenyan law?

Prenuptial agreements are legally recognised in Kenya. 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 written agreement.

What should you look out for before signing a prenup?

You must have full disclosure between yourselves. This includes disclosures of both assets and liabilities. There are instances when a prenup can be contested or dismissed. One of these is where one cunning partner undervalues their assets (such as land) refuses to disclose certain information (such as how much debt they have) or hides some assets (such as property, secret accounts and shares) to gain an upper hand. In such a case, the other partner can contest the prenup in court on the grounds of misrepresentation or fraud.

The timing

Timing of the prenup is critical. For example, if Patrick sends his best man to present his partner Sheila with a prenup for signing two days to their wedding, and she is told that should the prenup not be signed before the wedding date, her partner would call off the wedding, should she sign such a prenup? Can she bear to cancel the wedding or should she go ahead and sign it as a sign of her love and fidelity to Patrick and not ‘his money’ and thereby make peace? This type of a prenup may be dismissed by a court of law if Sheila contests that she signed under duress or upon coercion.

Independent legal advisor

Each partner must get their own independent legal advisor before signing a prenup. 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.

What should be contained in the prenup and what shouldn't?

Your prenuptial agreement must not be a pro-husband or pro-wife agreement only. There are things you must consider when the prenup is being drafted. These include:

1. The title to existing property: If any property was held in the name of one partner but after the marriage it was registered as jointly owned (for instance because of getting better mortgage terms and credit scoring), the prenup can stipulate that this property reverts to the initial owner if the marriage ends or it be shared in proportionally depending on the circumstances. 
2. Premarital cohabitation: Should property acquired during cohabitation and before the marriage be considered joint property, or is each partner going to have a separate proprietary interest in it?
3. Distribution of property upon termination of the marriage: This will lead up to the definition of what will constitute a ‘Termination Event’ and whether there will be any distributions of property, cash, or other assets. You should also consider whether there will be spousal support (alimony) upon the completion of the dissolution of your marriage.

What not to include

When it comes to custody, visitation, and child support decisions, it is nearly impossible to attempt to predict what you might want to happen in the event of a divorce. Courts and legislature do not let couples bargain their way out of the rights of their children. Additionally, a prenup should not promote divorce or separation. Therefore, a clause starting with ‘If you cheat on me, I can get a divorce…’ is not allowed.

How can you spot a skewed prenup?

The Matrimonial Property Act, 2013 is clear 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. It can be that only one partner makes full disclosure of their assets and liabilities while the agreement makes no obligation on the other partner. Some ‘manifestly unjust’ prenups have provisions regarding weight gain, ability to bear or sire children, or prescribing some limitations on a spouse’s permitted activities. These kinds of agreements are not upheld in court.

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Moses Tumu is an Advocate of the High Court and the Partner in charge of Litigation at Musa Boaz & Thomas Advocates.

When entering into a prenup, seek your own legal advice. By its very nature, a prenup is entered into when people are madly in love, which can impair proper decision making. Your legal guide should evaluate the fairness of what you are about to sign. This shall happen through disclosure of all assets and liabilities by each of you. For instance, it will be a red flag if one partner states that you shall share an asset and its responsibilities under any eventuality such as debt, but fails to disclose that such an asset has debt on it or has been charged to a lender.

Clauses you should reject

You should reject inclusion of clauses such as how to share acquired inheritances and prospective inheritances. The agreement should deal with property that is acquired in the course of your marriage. Even in this, there should be a clear formula on how this property should be shared, and clauses on how to compute contributions on such acquisitions. For example, it would be unwise to have a clause that says; ‘If I get an inheritance of two houses from my parents, we shall share them equally.’ 

What you should include

Your prenup should only contain clauses around your premarital assets and debts, assets and debts you will acquire together in marriage, management of assets and incomes, credit and debt, working and spousal support, and management of gifts from your respective families. For example, if down the line you decide that one of you will quit employment or business to take care of the home, how will ownership of any property that is acquired thereafter be considered? It should be considered jointly owned.

How can you spot a skewed prenup?

A skewed prenup can be spotted by checking the fairness of its clauses. It should not be confused with having an agreement on how you will divorce. Clauses on how to divorce shall be ruled by the court as a scheme aimed to defraud the other partner.

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