Tuesday, August 16, 2022

Your marital property rights if you get divorced with or without a prenup

Marital Property Rights: Although Kenya does not have a prenuptial database, trends in other parts of the developed world point to a rise in popularity of prenuptial agreements. According to the American Academy of Matrimonial Lawyers, there has been a fivefold increase in prenuptial agreements over the past 20 years. The majority of these prenups are taken by 18 to 34 year olds.

Drawing and signing a prenuptial agreement can be a life saver. In the Civil Case No. 12 of 2015, a prenuptial agreement saved a lady identified by the court as Ms. M.B from losing a multi-million property she had acquired in Malindi. Ms. M.B had entered into a prenuptial agreement with Mr. M.B.K before marriage. The two had agreed that each party was to own any property owned by that party before the marriage. This agreement was signed on 27th April, 2007. The two then got married on 2nd June, 2007. In the case, Ms. M.B testified that she purchased an apartment at Woburn residential area in Malindi in 2005.

But Mr. M.B.K contested the prenup, saying that he should be given shares in the property. “Since there is no evidence that parties agreed to have the Woburn apartment to be part of the matrimonial property, the court finds that that property does not form part of the couples properties acquired during the marriage. That property belonged to Ms. M.B before the marriage and is exclusively her property.  That is the essence of the pre-nuptial agreement,” the High Court at Malindi ruled.

Since prenuptial agreements are a foreign concept, many women are not aware that they are legally binding in Kenya. Murigi Kamande, an advocate of the High Court of Kenya, says that prenuptial agreements are recognized under the Kenyan law. “Every single woman ought to know that prenuptial agreements are recognized and provided for as valid agreements in Kenya under Section 6 (3) of the Matrimonial Property Act of 2013,” he says.

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Mr. Kamande also says that to be legally on the safe side, it is paramount that you sign a prenuptial agreement before walking down the aisle. “It may look like signing a prenuptial contract is the same as setting the marriage up for failure. This is not entirely true. By appending your signature, you will be walking into the marriage fully aware of what you would be entitled to should things go sour between you and your spouse,” he says.

This resonates with Marion Obonyo who says that the presence of a prenup has not dented her marriage. “We have a prenup in place. It distinguishes the investments and assets we had acquired prior to marriage and what we have attained now as a couple. It is a source of our financial pride and independence,” the 36-year-old Nyahururu-based advocate says. “A prenup works in an almost similar manner to an insurance policy. You don’t take insurance because you anticipate getting sick or having an accident.” A prenup will also come in handy should you opt to remarry after divorce. “If you want to remarry, it will be wise to get another prenup to protect both the property you had acquired prior to your first marriage and the share of matrimonial property you got during your divorce,” says Ms. Obonyo.

When signing a prenuptial agreement, you should not be intimidated or coerced into appending your signature. “The agreement should be agreeable to both parties. It should also be sensible and just. If it is influenced by fraud or coercion, a court of law could have it discarded,” says Kamande. For example, a spouse who took part in the prenuptial agreement may apply to a court of law to have the agreement quashed. “The court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion, or is manifestly unjust,” Section 6 (4) of the Act says.

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Apart from getting a prenuptial agreement, you must also register your marriage and acquire a legal marriage certificate to protect the property that you and your husband shall acquire during your marriage. This means that if you have acquired property together under cohabitation, you may be at risk of losing it all as your relationship may not be interpreted as a legal marriage.

One of the instances where a prenup is a must-have is when you have significant wealth. A report by Kibatia Advocates on pre-marital agreements in Kenya specifies that you must be keen to get a prenuptial contract if you and your partner have substantial and disparate assets. “These include assets with substantial value and appreciation such as real estate. The agreement will state that upon separation, these assets will not be divided between you. Instead, each party will walk away with their own assets and liabilities,” says the report.

In the event of a divorce, you will also get an equal share of your matrimonial property besides the assets safeguarded by your prenup. The Matrimonial Property Act defines matrimonial property as including the matrimonial home occupied by a married family which is either jointly acquired or acquired by one spouse, household goods, movable or immovable property that is jointly owned and acquired during the marriage. The Kenya Law legal resource says that a married woman has the same rights as a married man to acquire, hold, control, use, dispose, or administer property, to enter into a property contract, or to be sued or to sue. At the same time, if a couple acquires property in one spouse’s name, he or she will hold it in trust for the other spouse where a prenuptial agreement is in place. “Where property has been acquired during marriage in the name of one spouse, there will be a presumption that it is held in trust for the other spouse,” says Kenya Law. If the property is in the names of the spouses jointly, there will be a presumption that their interests in the property are equal.

Marital Property Rights: Legal takeaways on prenups and sharing of matrimonial property

Costs: According to Mr. Murigi Kamande, costs will tend to vary depending on the nature of the agreement in question and the kind of property involved. He however notes that the least it may cost you will be Sh. 50,000.

Sharing property: Article 45 (3) of the Constitution on Kenya, 2010, declares that in the event that you had acquired property prior to getting married then walked into the marriage without a prenup, you and your partner will automatically share matrimonial property equally in the event of divorce, irrespective of the contribution (or lack of) either of you made towards the acquisition of the property.

Spousal liabilities: Section 10 of the Matrimonial Property Act of 2013 states that any liability that was incurred by a spouse before marriage will remain the liability of the spouse who incurred it.

Polygamy: If your husband acquires a second wife, and you end up divorcing, the property you and your husband had acquired before the second wife came along will be divided equally between you and your husband alone. The second wife will not lay any claim. If property is acquired after more wives come along, such property will be retained by the man and the wives but this will take into account every contribution made by each party.

Stay at home wives: The law also protects women who work from home or who are stay-at- home wives. For example, Section 2 of the Matrimonial Property Act No. 49 of 2013 defines contribution towards the acquisition of a matrimonial as including monetary and non-monetary contributions such as domestic work and management of the matrimonial home, child care, companionship, management of family business or property, and farm work.

Marital Property Rights: This feature was first published in the Saturday Magazine. The Saturday Magazine is a publication of the Nation Media Group.

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