(This is an article I wrote for the Standard Newspaper a couple of months back. Be sure to check out my column “City Hawk” every Sunday on the Standard Newspaper Sunday Magazine. Also, to buy my novel “The Realm of Humanity” available only in soft copy, send me an email at email@example.com)
A long time ago, a boy would meet a girl he likes. He would say nice things to her and she would like the nice things he’s saying to her. Then he would ask to marry her and if she said yes, then poof! They would go down the “till death doth us part” route.
In case things got a little rocky and they decided to put a permanent pause to that whole “for better or worse” arrangement, they would go to court and fight over small matters like custody (who gets to keep the children when) and marital property (who gets to keep what).
Oh, people still get to go to court to fight over that whole children thing I mentioned earlier, but there is now a shortcut in matters pertaining to property. It is not a must for people to fight over property in court and waste money on lawyers and say nasty things to each other. They can just sign a contract before getting married. A contract that says how property will be divided in case these sweet cheeks angels who are about to tie the knot, decide to untie it.
Ladies and gentlemen, I present to you a prenuptial agreement. Sometimes it is called an ante-nuptial agreement. But since I am lazy and I like shorter words, I will just call them “prenups”. They are beautiful little things for people who enjoy the realistic side of life.
In Kenya, we have the Matrimonial Property Act No. 49 of 2013. It’s a nice little Act which anyone can read in one sitting. Section 6(3) of this Act recognizes the right of parties to an intended marriage to enter into an agreement before they get married. This is to determine their property rights.
But if one is coerced (It is a fancy term that lawyers love throwing around. It is basically making somebody do something against their will either by force or threats) into signing a prenup, or there was fraud or manifest injustice involved, then section 6(4) mentions that the court may set aside a prenup upon a party’s application to that effect.
There isn’t much about prenups in our courts. Not yet. But I came across a court case that touches on this. K v B Civil Case No.12 of 2015 (eKLR)
It is your usual case. Boy meets girl. Well, man meets woman. They like each other. They get married. But before they do, they decide, “Hey, you know what? Because it is 2015 and bad things happen to good marriages, why don’t we sign a prenup in case we get to the future and we don’t like it?”
Which is what they do. Not long after, they decide to get divorced. And like most people getting divorced, they run to court asking to keep this and that. The High Court at Malindi recognizes their right to have a prenup. One of the issues to be determined is whether property belonging to someone before they got married forms part of the matrimonial property. This is because only matrimonial property is addressed under a prenup.
The court was like, hell no! Well, that’s a bit of a paraphrasing there, but the nice court was of the opinion that property belonging to a party before the marriage is exclusively that party’s property. That (and I’m quoting here) is the essence of a pre-nuptial agreement.
The process of arming yourself with one of these bad boys is;
- You meet someone you want to marry and they’re ready to be married to you (Obviously);
- Walk into a lawyer’s office and tell them, “Hi. We’re very soon going to be Mr. and Mrs. So and so. We love each other very much, but since those geniuses who call themselves scientists are yet to invent a time machine, how about you hook us up with a prenup.”
- The nice lawyer will say, “Yeah sure. Why not.” And they’ll draft it in the way that you want them to draft it. See? Simple.
Of course there is this whole “Prenups are an admission of the ‘temporariliness’ of your impending marriage” which makes people shy away from them. Which is weird because there are all these cases in court revolving around people who want to keep this house and that car. And guess what, these guys had no prenups! At which time I imagine they are thinking, “Maybe I should have given much more thought to this whole prenup animal.”
I mean, you have insured your car, right? Or your house? Just because you have a fire insurance cover on your house doesn’t mean you built it anticipating a fire, does it? Same thing really. But hey, this is one of those “It’s up to you” situations.
Hey can I tell you something fun? Over 2,000 years ago there existed the Hebrew marriage contract called the Ketubah. It was basically an arrangement meant to protect wives from being homeless in case of a divorce with a mean husband who’d go like, “Since I don’t like you so much anymore, it’d give me pleasure to see you sleep outside.” So see? It is not that new of an idea. Just saying.