A Guide to Drafting a Prenuptial Agreement

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Adultery, has been given a bad name. It has been blamed for the rising cases of marriage breakups. Sensational. Data reveals property wrangles and management of finances as rampant trigger in divorce cases.

Once upon a time, people entered into a unity of matrimony on bonds of affection. Those were the days, that again would never return.

For in the current era of pragmatism, a party entering into union of matrimony must be eager to determine what the prospective counter-party brings on the table. What they may bring on the table is either cash flows or prospects of future cash flows. This journal is not sure whether beauty counts.

Thus, even at the heat of courtship, it becomes a necessity to be clear on how finances and property would be managed once wedded, instead of handling the issue through trial and error, as is often the case. Just like way before mergers of business concerns a deal has to be struct, with conditions precedents and conditions subsequent, same way before making an agreement to marry.

One of the tools of actualizing this objective is having a well written prenuptial agreement (a prenup). A prenup is an agreement made between two people before marrying. It establishes rights to property and support in the event of divorce or death.

A prenup has a legal basis. The Constitution provides for the right to own property in any part of Kenya. The enjoyment of any right to own property cannot be restrained on the basis of marital status.

The Matrimonial Properties Act provides that parties to an intended marriage may enter into an agreement prior to their marriage to determine their property rights.

Even though the popularity of prenups has been growing, most of them end up being invalidated, because parties failed to seek legal advise or to draft them properly. It is true there are grounds for Invalidating a Prenup, either on account of the agreement being influenced by fraud, coercion or being manifestly unjust.

Hence, to ensure a prenup is valid, it must abide by following principles:

One, the agreement must be freely entered into. The should be no coercion.

Two, the parties must have a full appreciation of the implications of the agreement. It should not be unjust or unfair.

Three, the parties should make full and frank disclosure of all of their assets including those that they intend to exclude under the prenuptial agreement. This is a requirement at common law.

Four, the right of the child to support should be addressed prior to signing the Agreement, noting that the interests the child take precedence over all other interests under Kenyan law.

Five, the position at common law appears to be that prenups must not be entered into less than twenty-one (21) days before the marriage. The party initiating the process should therefore ensure that the other party is provided sufficient time to review the prenuptial agreement and the financial disclosures.

The parties should note that the agreement could be set aside by the Courts on the ground that it was unfair or manifestly unjust.

Therefore, the parties should ensure that the agreement does not have the effect of producing gross inequality between them either at the time of execution or during the marriage and that the division of assets is not weighted too heavily in favour of one party.

The habit originating from era of romanticism, where a party, often a male, kneels down with a ring to initiate countdown to a marriage is obtusely naive. Agreement to enter into a union of matrimony should be a toast, after hard negotiation and signing a prenup.

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