PRENUPTIAL AGREEMENTS; A FLASH LIGHT TO ARTICLE 45(3) OF THE CONSTITUTION OF KENYA

Prenuptial agreements are defined as written contracts created between two people before they are married and which also identifies individual assets or properties registered in the names of, or belonging to the spouse at the time of marriage.

Prenups can be made by any person who intends to get into a marriage, be it formal or informal. These agreements are not just limited to the rich and wealthier persons within the society. The agreement is created to serve various purposes such as;

a)???identifying individual assets and properties of a spouse prior to a marriage commitment;

b)??stating the financial rights of a spouse in a marriage;

c)???where one has children prior to the marriage, to pass or identify the portion of his assets or property that shall pass to such children as inheritance;

d)??protect oneself from incurring or paying for the debts that are in the name of the other spouse; and

e)???to avoid colossal arguments in case of a divorce.

As the principle goes, ‘courts of law are not invited to rewrite contracts entered into between parties except in situations where such contracts appear to have been made out of spite with complete disregard of the law’. Prenups being considered as contractual agreements between spouses cannot be rewritten by the court save where the laws of natural justice demands otherwise. The same applies to marriages mutatis mutandis.

When one enters into a marriage without executing a prenuptial agreement, then they are bound by the laws as to marriage and ownership of matrimonial property. Inversely, when one enters into a prenuptial agreement with his/her spouse, the same will serve the purpose of supplementing the well-established laws of marriage and matrimony during and after the marriage when it shall be so determined, if that’s what shall become of it. It is therefore of utmost relevance for couples, especially those who have advanced considerably in age and are in possession/ownership of something which they bring to the marriage, to consider utilizing prenuptial agreements before committing their life to their significant other.

Section 6(3) of the Matrimonial Properties Act espouses spouses to enter, voluntarily, into prenuptial agreements before marriage in order to identify each spouse’s individual properties and assets. This provision pronounces itself that “(3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.” A deeper comprehension of this provision presents itself in a manner that such agreement shall be limited to the spouses identifying only their RIGHTS to a property. Which begs the question, does such RIGHTS speak in volumes to the extent of registerable interest or does it only commend itself to asserting an interest in a property. This provision is equitable to Section 17 of the Matrimonial Property Act 2013 in which a spouse is entitled to seek for a declaration of a right to a property before a marriage has been dissolved. The upshot of it being that section 6(3) comes into effect BEFORE the marriage whilst section 17 comes into effect after the marriage celebration has taken place. This two operate in concomitance with each other.

Ergo, this provision is quite clear and need not be given any further explication. Juxtaposing the provisions of section 6(3) and Section 17 of the Matrimonial Property Act, 2013 with Article 45(3) of the Constitution of Kenya, 2010 which provides for a rather vague exposition of spousal rights to properties, this especially in relation to the ratio allocation of such right to each spouse. The eisegesis of this provision has been variant among Judges in Kenya. We have seen some taking the stand that the said provision under Article 45(3) to mean that spouses are entitled to EQUAL rights to property in the sense that at the time when the marriage shall be dissolved, each spouse shall take half (50%) of what is considered to be matrimonial property, conversely, there are those who have been of the view that this provision means that spouses shall be entitled to be treated with equality in accordance with their contribution towards the acquisition of property while sharing out the matrimonial property upon dissolution of marriage. The latter is in line with the prevalent 5 judge bench decision of the Kenyan Court of Appeal in Peter Mburu Echaria v. Priscilla Njeri Echaria [2007] eKLR. Additionally, a Court exercising its discretion in assessing such contribution of a spouse should be guided by the unique facts and circumstances surrounding each case. See Muthembwa vs. Muthembwa [2002] 1 KLR.

To create a little clarity on the same, Justice Kiage was of the view that ‘it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one does in that marriage. See the Civil Appeal No. 128 of 2014; PNN v ZWN [2017] eKLR.

On the outset, contribution cannot be said to be just contribution and evidenced by word of mouth until it’s proven before a court of law. Courts have held that indeed love, affection and taking care of children in a marriage is to be considered as contribution while determining the ratio-apportionment of contribution towards the acquisition of a property.

With this in mind, it would only be fair to raise questions as to acquisition of a right in a matrimonial property. The questions that commends themselves to me include;

1.??A couple who have registered equal rights to the ratio of 50:50, and where the husband/wife(either of them) takes care of the family i.e raise kids in the absence of the wife/husband who spends a lot of his/her time with his/her peers, does that entitle the husband/wife to a higher ratio portion of allotment towards contribution of the property?

2.??A spouse who does not have any registered interest in a property but where the said property is in the name of the husband/wife alone, and where the wife/husband is a career wo/man who also doubles as an ideal societal father/mother to the children i.e takes care of the children in the absence of the husband/wife, and also showers the wife/husband with love and affection, at the time of dissolution of the marriage, will the woman/man be entitled to a higher ratio of the property as compared to the husband/wife whose purpose was only to acquire the property in his/her name and ignore taking care of his family as well as raising the children?

3.??Should the courts also consider emotional torture caused to a spouse during marriage in determining the ratio of apportioning rights to a property?

4.??Where a dissolution of a marriage is by reason of infidelity by either spouse, should the courts also consider such behavior in apportionment of rights to a property acquired during marriage?

5.??How is the division of matrimonial property in a polygamous household required to take place where a prenuptial agreement does not subsist?

To my mind, this are just but few of the questions that present themselves for determination and clarification within the legal argot.

Perhaps, in order to help create a clear position and mindset of the provisions under Article 45(3) of the Constitution of Kenya and avoid creation of morass decisions in regard to matrimonial property rights, it would be prudent for the Supreme Court to exercise its juridical mandate under Section 2 of the Supreme Court Act and undertake the exegesis of the true interpretation of the provisions set out under Article 45(3) in order to create a quintessential interpretation of the same. Be that as it may, I would applause the Courts of justice on their proclivity in making decisions which have aligned themselves to the interpretation that the provisions under Article 45(3) do not purposefully impugn or translate to a 50:50 equal sharing of matrimonial property upon dissolution of a marriage. Contribution towards the acquisition of a property has to be ascertained and proven in order for one to be entitled to a share of the property. Regardless, parties will continue to act carte blanche while advancing their claims to a right in a matrimonial property knowing quite well that the courts are supposed to handle cases with an open mind and act with impartiality.

For the time being, as parties keep wandering in an imbroglio of notions as to how they will settle division of matrimonial properties, the solution shall lie with prenuptial agreements. This, merged with a proper interpretation of the provisions under sections 6, 7 and 17 of the Matrimonial Properties Act, 2013, should provide spouses with an easy avenue to solving division and declaration of rights in a matrimonial property. That being the case however, it would be commendable for spouses to clearly state their rights in a property acquired during coverture in order to avoid the inordinate legal battles as to who owns what and to what percentage of the property goes to who.

By: MUGARO SHIYENJI MARTIN

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