12 December 2012

Kenya: Bill Okays Prenuptial Agreement Options

Photo: Capital FM
Marriage: prenuptial agreements bill to be passed

Spouses-to-be now have an option prior to taking their marriage vows to predetermine how they will share property and spousal support in case of divorce.

Section 6(3) of the Matrimonial Property Bill, awaiting parliamentary approval to be effected, recognises 'prenuptial agreements' entered into by parties intending to marry to determine their property rights.

A spouse may however seek court intervention to nullify a prenuptial agreement if deemed unjust.

"A party to an agreement made under subsection three may apply to the court to set aside the agreement and the court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust," reads section 6(4) of the bill.

Assets acquired before marriage will not form part of matrimonial property, which have now been defined as the matrimonial home(s), household goods and effects in the home(s), and any other property acquired during the marriage.

The law however introduces 'beneficial interest' on a property, equal to the contribution made, where a spouse makes contribution towards improvement of a property acquired before or during marriage but does not qualify as matrimonial property.

In the absence of a prenuptial agreement, a husband and wife will automatically share matrimonial property equally in the event of divorce, irrespective of the contribution of either spouse towards acquisition of the property.

The law seeks to vest equal rights in spouses over matrimonial property, which includes any movable and immovable property acquired by either spouse during a marriage.

It now recognises both monetary and non-monetary contribution towards acquisition or accumulation of matrimonial property - including domestic work, home management, child care and companionship. Contribution will also include management of family business or property and farm work.

"Despite any other law, a married woman has the same rights as a married man to acquire, administer, hold, control, use and dispose of a property whether movable or immovable; to enter into a contract; and to sue and be sued in her own name," reads section 4.

The law also recognises 'spousal liability' incurred before marriage in relation to a property, but such liability if justifiably incurred may be equally shared by spouses if the property becomes matrimonial, unless the spouses have agreed otherwise.

Any liability acquired during marriage or a justifiable expense incurred for the benefit of the marriage will be shared equally.

The bill also stipulates that a spouse has "an interest in matrimonial property capable of protection by caveat". Eviction of a spouse from the matrimonial home can only be through a court order.

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