1. What is a Prenuptial Agreement?
A prenuptial agreement, commonly known as a prenup, is an agreement entered into by a couple before marriage that distributes their assets in the event of a divorce.
2. Why should I get a prenup?
- To protect future assets that may be acquired during the marriage;
- To protect family-owned property by ensuring it remains in the family;
- To protect assets acquired prior to the marriage;
- To protect assets from debts incurred by a spouse whether before or after the marriage;
- To protect the interests of children from a previous relationship by ensuring they receive their rightful inheritance;
- To save time and money by avoiding lengthy divorce proceedings.
3. Does the law in Kenya recognize a prenup?
Yes. Section 6(3) of the Matrimonial Property Act states that parties to an intended marriage may agree to determine their property rights.
4. What can I include in a prenup?
- All Assets and liabilities;
- Division of property;
- Allocation of liabilities/debts;
- Spousal support;
- Debts and liabilities.
5. What happens if I change my mind after I’ve signed a prenup?
If both spouses agree, the prenup can be amended or revoked.
6. What makes a prenup valid?
- The parties must agree willingly;
- The parties must understand the effects of the agreement.
7. Is there a timeline in signing a prenup?
Not exclusively. However, a prenup that is signed too soon before the marriage ceremony will not be recognized by the court. Under common law, a prenup should be signed at least 21 days before getting married. It is recommended that the prenup be signed at least 6 months before the marriage date.
8. Can a prenup be invalidated?
Yes. Although challenging a prenup after marriage may be more difficult, it is possible under certain circumstances, such as if one party can prove they were coerced into signing the agreement or if there was a material change in circumstances that makes the agreement unfair.
9. Can a prenup address matters related to child custody and visitation rights?
Yes, although custody and visitation rights are typically determined by the court based on the best interests of the child, a prenuptial agreement can include provisions regarding how these matters will be handled in the unfortunate event of a divorce.
10. Can a prenup cover future income and earnings?
Yes, a prenup can outline how future income and earnings will be treated in the event of divorce, including income from businesses, investments, or other sources acquired during the marriage.
11. Are prenups enforceable in other countries if the couple relocates?
It depends on the laws of the country where the divorce is filed. Some countries may recognize and enforce prenuptial agreements signed in other jurisdictions, while others may not.
12. Can a prenup address spousal behavior or fidelity?
While a prenup can include provisions related to financial matters, it generally cannot dictate personal behavior or impose penalties for fidelity or other non-financial issues.
13. Are prenups only for wealthy individuals?
No, prenups can be beneficial for couples of all income levels. They can help protect assets, clarify financial expectations, and provide peace of mind for both parties, regardless of their financial situation.
14. How much does it cost to draft a prenup?
The cost of drafting a prenuptial agreement can vary depending on factors such as the complexity of the agreement, the experience of the attorneys involved, and the jurisdiction where the agreement is being drafted. It is important to discuss fees with your attorney upfront and consider the potential long-term benefits of having a well-crafted prenup in place.
Parties should seek independent legal advice before signing a prenup. At Kibatia & Company Advocates LLP, we offer comprehensive insight to navigate the complexities of prenups and ensure that the future and interests of both individuals are protected.
