MARRIAGE CONTRACTS

Marriage is a lifetime commitment that entails both rights and obligations, including property rights and financial obligations. Interestingly, just like any other contract, marriages are breakable and have always been broken. Indeed, the main reason people enter into contracts is to safeguard themselves from losses in the event that one of the parties breaches the agreement. However, it may be the case that the genesis of marriage is usually so beautiful and sweet that couples rarely want to contemplate their divorce or any gloom in their intended marriage, or if they do, they never take enough time to consider the worst-case scenario of their union.

Every marriage, as a contract, always has assets and financial ramifications for the parties involved. Unfortunately, when marriages end for any reason, the parties frequently discover that they are not protected against losses. Divorce proceedings and their aftermath are inherently complicated because the division of assets and debts was never agreed upon by the parties, and the ensuing bitterness drives parties to demand things they do not fairly deserve.

Hence, notwithstanding what the respective party's real fair share would be, even a party who made little or no contribution will look to the courts to grant them equal rights to the property at issue, which they are automatically entitled to in the absence of a legally binding reasonably fair consensual agreement between the parties.

It goes without saying that courts have a great deal of discretion when it comes to deciding how assets and liabilities should be divided on divorce or separation. Therefore, a prenuptial agreement is a smart technique to persuade a judge to find in favor of a spouse who would essentially suffer losses if the parties' property was divided equally.

PRENUPTIAL AGREEMENTS?

A prenuptial agreement (prenup) is a formal agreement by mutual consent of individuals who want to marry, stating the regime of ownership of property between them upon marrying and when the marriage ends by death, divorce, or incapacity. Accordingly, prenups relate to assets and financial implications of marriage and establish conditions of ownership and management of personal and concrete joint property and potential division of marital assets in the event of a divorce.

Legal Recognition of Prenups in Kenya

Prenuptial agreements are now legally permissible and enforceable in the Republic of Kenya since 2014 following the coming into force of the Matrimonial Property Act 2013. The Act provides for the rights and obligations of spouses regarding the Matrimonial Property. Section 6(3) provides that “the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.” Further, the Act encourages both separate and joint ownership of property by spouses thus giving way for transmutation and commingling property. Read more by the author on transmutation and commingling of property at https://www.bensonsaguom.com/news-articles/joining-separating-and-shifting-marital-property-in-kenya

Enforceability of Prenups

During a dispute, a prenuptial agreement may be the subject of court interpretation and review. If a party disputing the prenuptial agreement can show that it was signed under coercion, fraud, or inadequate asset disclosure, or when the conditions are implicitly unfair, the prenuptial agreement may be deemed unenforceable.

Preparation Of Prenuptial Agreements

To ensure fairness, each party should have a third party completely focused on that side’s best interest to review the contents of the agreement. It is suggested that parties hire legal counsel (s) for this because they can examine and iron out the pertinent legal difficulties. Sound independent legal advice for each party is not merely important for the parties’ best interest but also a legal requirement. Essentially, the purpose of the advice is to enable each party to fully comprehend the terms and consequences of the prenup. It is believed that a lawyer should be able to point out any manifestly unjust provisions and advice on having them revised before execution of the agreement. Moreover, where the parties had independent legal counsel, the courts will be reluctant to dismiss the prenup on the grounds of intimidation, fraud, or coercion. So, there are two choices:

i)???????????????????The prenuptial agreement can be drafted by a lawyer for the couple, and either party will then hire another lawyer who is solely interested in the party’s best interest to examine the draft. (https://www.bensonsaguom.com/news-articles/joining-separating-and-shifting-marital-property-in-kenya)

Well, it is essential and simpler to design the agreement with the aid of a lawyer who can advise on the relevant legal issues, what is appropriate, and what is enforceable to guarantee that your agreement is not ultimately voidable by courts.

ii)?????????????????A couple can draft a prenuptial agreement on their own and then each takes the draft to a different lawyer for review. The couple then meets with both lawyers to discuss any revisions and finalize the agreement.

Advantages of Prenuptial Agreements

• Allows a couple to choose and have control over the legal rights they acquire upon marriage and what happens if their marriage ends.
• Many of the default marital laws that would otherwise be in effect in the case of divorce are superseded by prenups.
• Prenups provide not only for what occurs in the event of a divorce but also for the protection of some marital property.
• Can be used to shield one from debts and assets acquired by the spouse prior to the marriage.
• Can be used to anchor a formula for combining and dividing marital property, thereby navigating tax liabilities and insolvency.
• Minimizes acrimony on divorce
• A prenuptial agreement is a smart technique to persuade a judge to find in favor of a spouse who would essentially suffer losses if the parties’ property was divided equally.

Disadvantage of Prenups

Just as it is challenging to identify the drawbacks of food, prenuptial agreements have a few disadvantages. They are similarly harmful to users as only food that has been improperly cooked, poisoned, spoiled, rotten, or unclean would be to consumers. Thus:

1. A poorly crafted prenup might fail to pass a test for the fairness of the prenup and mutuality of the parties’ intentions to be bound and will be revoked by the court, thus unenforceable and useless.
2. A prenup might dilute romance.
3. A prenuptial agreement cannot regulate issues pertaining to child custody and access rights since decisions affecting children must be guided by the best interest of the child doctrine and be made in their best interests.
4. A good prenup costs some legal fees which one must foot.

Conclusion

In the absence of a prenuptial agreement, marital property is simply divided equally between the spouses in the event of a divorce. Prenuptial agreements specify the regime of property ownership between spouses during the subsistence of the marriage and at its end thereby safeguarding the parties from unnecessary losses and lengthy court battles. This does not connect the goals of a prenuptial agreement to a formula to make a party receive less than they would; a prenup simplifies a divorce because the parties had already discussed and agreed upon their fair shares of the division of assets and obligations.????

If you need any clarification, help, or guidance on how to obtain a Prenuptial Agreement or a review of your prenuptial agreement, kindly contact us at [email protected]