A prenuptial agreement (or antenuptial contract) is an agreement made between two people before they marry, setting out how their property will be managed during the marriage and divided in the event of divorce or death. In Kenya, prenuptial agreements are recognised and enforceable under the Matrimonial Property Act 2013, subject to certain conditions.
Legal Basis
Section 6 of the Matrimonial Property Act 2013 expressly permits spouses to agree in writing, before marriage, on the ownership and management of their property. Such agreements take effect on marriage. This provision significantly strengthened the legal standing of prenuptial agreements in Kenya compared to the previous position.
When is a Prenuptial Agreement Enforceable?
Courts will generally enforce a prenuptial agreement if:
- Both parties entered into it freely, without coercion or undue influence.
- Both parties made full financial disclosure to the other.
- Both parties had independent legal advice before signing.
- The agreement was entered into well in advance of the wedding, not under pressure of an imminent ceremony.
- The agreement is not manifestly unfair or contrary to public policy.
What Should a Prenuptial Agreement Cover?
- Identification of each party's pre-marital assets (the "separate property").
- How matrimonial property acquired during the marriage will be shared on breakdown.
- Treatment of business interests, inheritance and gifts received during marriage.
- Financial support obligations on separation.
- Succession arrangements (though a prenuptial agreement does not replace a will).
Limitations
A prenuptial agreement cannot: override the rights of children to maintenance, exclude a court's jurisdiction to make orders for children, or be enforced if circumstances have changed so fundamentally that it would be manifestly unjust to do so.