Should You Sign a Prenup Before Marriage? 5 Things to Know

Two love birds Cate and Martin, have been dating for three years and plan to tie the knot in five months. During the dowry negotiations in October, the couple were caught off guard when Cate's father asked if they had signed a prenup. It hadn't occurred to them that they needed one.

Cate, 25, is a high school teacher and an only child of a wealthy businessman. On the other hand, Martin is 28 and a dentist at a high-end city hospital. The couple were asked to ensure they are open about their current and future finances, put it on paper and have a prenup.

Martin's family encouraged him to sign a prenup given his career prospects which, in their opinion, put him at an advantage to build more wealth than his fiancé. On the other hand, Cate's father reminded his daughter she was his obvious heir and needed to protect the estate. 

The couple hired lawyers, created prenups, and now, they have put that behind them. 

Are you in a similar dilemma, wondering whether you should sign a prenup? This article will help you understand everything you need about prenuptial agreements in Kenya.

Read Also: Yours, Mine, Ours? How Couples Can Manage Money

What is a Prenup Agreement?

A prenuptial agreement, also known as a prenup, is a legal contract that couples enter before marriage. The contract establishes each spouse's property and financial rights and sets forth the division of their assets and liabilities in the event of separation, divorce, or death. 

A prenup is recognised by law under the Matrimonial Property Act of Kenya, Section 6 (3), which provides parties intending to get married may enter into an agreement. The contract determines their property rights. It also takes precedence over other principles of subdividing matrimonial properties.

A prenup falls under contract law. It must therefore be in writing and signed by two consenting adults of sane mind in the presence of their witnesses. 

So, why is prenup important?

Considering that money conflict is the biggest cause of divorce, a prenup will help you protect yourself in case your marriage ends in divorce. 

And that's not all. A prenup allows you to have an honest pre-marriage money conversation with your partner, makes divorce less complicated and cheap, protects your kids, and ensures fairness.

Read Also: For Richer for Poorer: 9 Money Conversations to Have With Your Partner Before Getting Married 

Who Needs a Prenup?

A prenup is important for many reasons. And contrary to popular belief, it's not just for rich people. It can benefit anyone looking to get married. After all, marriage is as much a union of love as it is a union of your finances.

Having conversations about money is hard. But discussing money and divorce when planning to get married can be awkward and more challenging. Yet it's imperative that you do it to protect yourself and your finances because you would need to sign a prenup for multiple reasons.

Here is a list of circumstances that should make you consider getting a prenuptial agreement before saying, "I do."

1. One partner is wealthier - In this circumstance, a prenup will ensure the wealthier partner protects their assets and maintains the other partner's improved lifestyle after divorce.
2. One partner plans to be a stay-at-home parent - A prenup will provide financial security to the unemployed partner.
3. One or both partners anticipates future inheritance that could make them wealthier. Without a prenup, inheritance can be considered matrimonial property.
4. One or both partners anticipate a large income increase due to their lucrative career prospects or other circumstances. 
5. You are supporting the other partner's education by paying their University fees.
6. One or both partners have loved ones or family members depending on them financially. 
7. One or both partners have a kid(s) from a previous relationship(s).
8. One or both partners want to keep their personal debts incurred before and during marriage separate. 
9. The husband is polygamous or intends to marry more wives in the future.
10. One or both parties have been married before and are unwilling to marry again without a prenup because they feel an ex took advantage of them.

Read Also: Debt and Marriage: Key Things You Need to Know

What is Covered In Prenup Agreements (and What isn't)

A prenup has two main conditions. First, it should be entered before marriage, and second, it should be fair. 

The provision of the prenup should not be one-sided. An unequal agreement or one that favours one party on the division of assets might not be authorised by a judge. Additionally, prenups signed a few days before marriage can present problems later. Such that a judge may consider it signed under pressure. 

Nonetheless, you ensure your prenup covers everything that can affect your finances in case of divorce. Here are some things that you can include in your prenup agreement:

• Your separate assets and debts 
• Your joint assets and debts acquired before marriage 
• Your child(ren) from a previous relationship 
• Your inheritance rights in case of death without a will 
• Distribution and division of property after divorce 
• You can also include an alimony claim (spousal support) after the divorce 
• Confidentiality agreements (if one person wants to maintain their privacy following a divorce, they can include a non-disclosure agreement)
• A sunset clause - It gives the prenup an expiry date, meaning it becomes obsolete after a given time.

It is also important to note that you can't include everything in a prenup. There are some things that only a court of law can decide after divorce. They include matters concerning the welfare of children, like child custody, parenting time, and child support.

Additionally, prenups can't cover personal matters. Issues such as who will be in charge of cooking, cleaning and different chores, where you will spend your holidays, or whose name to use should be excluded from the contract. Include only issues that affect your finances. 

Finally, prenups can't include subjects that promote divorce or put one party at a disadvantage. Therefore don't include clauses like, "we will divorce if one party is unfaithful" or "we will divorce if one party can’t bear/sire children."

Read Also: Marriage Is an 'Achievement', but Is It?

The Dos and Don'ts of Signing a Prenup 

The Matrimonial Property Act 2013 states that a court may set aside the agreement in a prenup if it determines that it was influenced by fraud or coercion or is manifestly unjust. This means that if one party contests the prenup, a court will set it aside and decide how assets are shared following the disillusionment of your marriage. 

Therefore, both parties must follow the best practices when preparing the contract. It's vital that you seek legal advice to ensure that the agreement is fair. A lawyer will also help you identify any red flags or pitfalls that a court might use to set aside the prenup.

When seeking a prenup, here are the best practices you should follow:

1. You and your spouse should seek independent legal advice to avoid suspicions of coercion, duress, and conflict of interest.
2. Ensure full financial disclosure- Hiding assets/liabilities or withholding important information that might prevent one party from making an informed decision can be considered fraud.
3. Ensure the agreements' terms are fair and there are no signs of fraud, undue influence, coercion, duress or economic duress when negotiating and signing the contract.
4. Adhere to all laws of contract best practices. 
5. Make the timing right- Start the prenup conversation early and ensure you and your partner reach an agreement and sign the contract at least 21 days before getting married. 
6. Ensure that your will and estate planning wishes don't conflict with your prenup. 
7. Separate personal and matrimonial properties and avoid vague language that can lead to a court setting aside the agreement.
8. Ensure that you hire a divorce lawyer before executing a prenup after a divorce. 
9. Don't include anything that might encourage or trigger a divorce 
10. Don't include any illegal clause or anything that breaks the law
11. Don't include clauses that interfere with the other partner's rights, such as their right to own property, right to worship, and so on.
12. Don’t include unreasonable provisions to prevent a prenup from being contested in the future. 

Read Also: Knot Yet: 8 Financial Actions to Take Before Getting Married

How to Amend a Prenuptial Agreement in Kenya 

A prenup isn't set in stone. You and your partner have the right to amend it at any time, provided that you both agree. 

You may amend the terms of your prenup for multiple reasons, including for variation, addition, correction, or deletion of information. However, any amendment you make must adhere to the principal terms of the contract and must be in writing. 

Additionally, a prenup can only be amended if both your and your partner willfully consent. That means that one party can't change the prenup when the other is incapacitated.

A prenup can only be signed before you get married. If you are legally married and want to set forth how personal and matrimonial properties will be distributed following a divorce, you will need to sign a postnuptial agreement (postnup).

A postnup is as beneficial as a prenup. It will help you define matrimonial assets, organise your finances, and ensure everyone you care about is taken care of. However, you should note that the law doesn't expressly recognise postnup agreements. Nonetheless, they're considered contractual in nature and are enforceable just like any other contract.

WRAPPING UP

A prenup is a binding contract. Once you sign it, you can't get out of the contract without the other party consenting or proving it was unjust. You must approach it clearly and ensure your rights and finances are protected. Following a divorce, you and your partner have the right to dispute a prenup and seek a court to set it aside.

While most people intend to have a long-lasting marriage till death do them part, that is not always the case. You should therefore weigh your options and start the prenup conversation with your partner as soon as possible if you need to protect your assets. 

You should also be prepared for scenarios where your partner refuses to sign the agreement. When this happens, communicate to them how a prenup can benefit them and encourage them to seek legal counsel. If that doesn't work, consider talking to your legal and financial advisors about what steps you should take.

Finally, Section 3 of the Matrimonial Property Act, 2013, provides that a person who professes the Islamic faith may be governed by Islamic law in all matters relating to matrimonial property. Therefore, if you or your partner is a Muslim, you might want to talk to an Islamic Law expert about your rights before signing a prenup.