I know a lot of couples who are apprehensive when it comes to discussing finances while courting, and the idea of a prenuptial agreement can feel even more intimidating. Money conversations in relationships are often avoided, and the mention of a prenuptial agreement may raise eyebrows. However, it’s crucial to understand that prenuptial agreements are not a sign of mistrust or an impending breakup, but rather a practical tool to manage finances in marriage, safeguard assets, and ensure transparency in case of divorce or death.

Take, for example, a couple where one partner comes from a family where the parents shared everything through a joint account, while the other’s parents kept their finances separate. In such a scenario, it’s easy for misunderstandings about money to arise in the relationship. A prenuptial agreement allows both partners to clarify expectations about their finances, offering guidance on how assets and liabilities will be handled in the marriage.

Does Kenya Have a Prenup?

Yes, prenuptial agreements, or prenups, are legal in Kenya. The Matrimonial Property Act, under Section 6(3), supports the creation of such agreements, allowing couples to determine ownership of their property either before marriage or during the marriage. Additionally, Article 40(1)(b) of the Constitution of Kenya guarantees the right of every person to own property, including property acquired before marriage. This means that individuals can protect their personal assets through a prenuptial agreement.

In the 2016 case of MBK v MB (2016) eKLR, the court upheld the validity of a prenuptial agreement, noting that such agreements are enforceable as long as they meet the legal requirements, including fairness and voluntary consent. The ruling reinforced the idea that prenups, when properly drafted, can help mitigate disputes over property during divorce proceedings.

Why You Should Enter a Prenuptial Agreement

• Clarity on Financial Expectations.

 Prenuptial agreements outline how both partners will handle finances, helping avoid future misunderstandings.

Protection of Personal Assets: Prenups help protect individual assets acquired before marriage, ensuring that these remain the property of the original owner.

• Debt Protection.

 If one partner enters the marriage with significant debt, a prenuptial agreement can protect the other partner from being held liable for it.

• Peace of Mind.

 Knowing that there’s a clear plan in place for how assets will be divided in the event of divorce or death can offer peace of mind to both partners.

Best Practice When Preparing a Prenuptial Agreement

When drafting a prenuptial agreement, it’s essential to ensure that both parties fully understand the terms and agree to them voluntarily. This ensures fairness and protects the agreement from being challenged later on.

The ruling in Y v Y (2014) EMHC 2920 emphasized the importance of legal advice in drafting a prenuptial agreement, noting that both parties must have an opportunity to seek independent legal advice. Similarly, in the case of DB v PB (2016) EMHC 3431 (Fam), the court reinforced that a prenuptial agreement must be fair and reasonable, with full disclosure of assets and liabilities to both parties.

Can a Prenuptial Agreement Affect Marriage?

A prenuptial agreement, if approached correctly, does not undermine a marriage. In fact, it can strengthen the foundation of a relationship by fostering open communication about finances. It’s essential for couples to view prenups not as a prelude to divorce but as a mutual understanding and respect for each other's financial independence and future.

Protect your love, secure your future. At Mirako Homes, we believe in creating not just beautiful spaces, but safe and harmonious environments where families can thrive—whatever the future holds.

Also read: Understanding Financial Abuse: Signs, Impact and How to Protect Yourself

Frequently Asked Questions

1. Are prenuptial agreements legally binding in Kenya? Yes, prenuptial agreements are legally binding in Kenya under the Matrimonial Property Act and the Constitution.
2. Can a prenuptial agreement be changed after marriage? Yes, prenuptial agreements can be amended after marriage, as long as both parties agree to the changes and they are made in writing.
3. Does a prenup only apply in case of divorce? No, a prenuptial agreement can also govern the division of property in the event of death or during the marriage.