Would you sign a prenuptial agreement?

Thursday March 19 2020

For many people, a prenup gives that peace of

For many people, a prenup gives that peace of mind knowing that someone is marrying you because of love and not for the material wealth. Ensure that you meet with a professional to explain to you the causes of the agreement. Net Photo 

By Simon Mburu

Not so long ago, marriage was not just a choice, it was a mandatory milestone. Most girls dreamed of a man who could protect and provide. But the wind of change has blown away these traditional sails to marriage.

Millennial women now have a very different approach to marriage. Most want to stand on their own feet before they can walk down the aisle. They want to choose their own partners, run marriage their own way, and if need be, sign divorce papers just as easily as they signed the marriage certificate.

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Millennial women are also marrying later in life as they climb the career ladder or to build wealth.

By the time they decide to settle down in marriage, many will have stocked up assets.
But this phenomenon has also ended in tears, regret and loss of assets and properties for women who forgot the most important piece in the puzzle: the prenuptial agreement.

Take Asha Wanjiru for example. She put off marriage to build her career and become financially independent. After her Master’s degree, she built an enviable career, bought a four-bedroom house, a car, and several plots of land. By 37, she was ready to get hitched. Then she met and married Cyrus, a mechanic.

Toy boys/couch potatoes on notice
Five years down the line, Asha is now stuck in an abusive marriage. “He claims that I do not respect him because I am more educated and richer,” she says, adding that Cyrus stopped working one year into their marriage. Asha fears that filing for a divorce will leave her worse off.

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“I never signed a prenuptial agreement. If I file for divorce now, I will end up sharing half of my property, investments, and money with a man who has contributed nothing,” says Asha, now 44.

She has a point. The Court of Appeal in Kenya recently ordered Mary Nyambura to share her multimillion properties with her alleged come-we-stay partner. Her plea, to keep off her ex, was quashed in a majority ruling that saw Justice Martha Koome dissent.

Many hope this dissenting opinion, will dictate future cases of men looking to reap where they did not sow.

Man-eater lifestyle
“A man who cohabits with a woman in a property held in the woman’s name needs to prove his contributions,” Justice Koome said.

Even in the absence of a prenup, this declaration puts toyboys and couch potatoes on notice.
“Lounging in a woman’s house while dominating the remote control for television channels cannot entitle a man to a share of the woman’s property,” the lady Justice concluded.

The rise of a man-eater lifestyle, emergence of blended families due to a rise in divorce rates, and remarriages and the growth in Inter-cultural marriages are just some of the other contributors to a pre-nuptial culture among the young.

“I do not believe marriage is an adequate reason to lose all you have worked for all your life. I have to sign a prenup to safeguard my money,” notes Natasha Bhoke.

A prenup may also be necessary if you plan to stay for a number of years without children, or where you have decided that you do not want children. The fewer children you have, the higher the chances of signing divorce papers, and the worse off you may end up if you had no prenup, says psychologist Dr Chris Hart.

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.

Murigi Kamande, an advocate of the High Court of Kenya says, “Signing a prenup may look like you are setting the marriage up for failure but that is not true. You will be walking into the marriage fully aware of what you would be entitled to should things go wrong,” he says.

“We have signed a prenup,” admits Marion Obonyo while adding that it is a ‘source of financial pride and independence rather than strife.’

Fit for remarriage
The 36-year-old advocate says a prenup is like an insurance policy. “You do not take insurance because you anticipate getting sick or having an accident,” she says.

A prenup will also come in handy should you opt to remarry after a divorce. “If you want to remarry, it will be wise to get another prenup to properties acquired prior to and after your first marriage,” says Obonyo.

Apart from getting a prenuptial agreement, you must also get 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.

One of the instances where a prenup is a must-have is when you have significant wealth. Initially, most men who were the wealth holders are the ones who pushed for a prenup.

What the law says
A prenup according to Edward Cooper Kyamanywa, a legal representative with Kyamanywa and Co Advocates is an agreement executed between partners that intend to get married.

In the agreement, the partners intend to protect the property they already have at the time of marriage or plan to acquire in future.

In the agreement, a couple can also agree on who contributes towards what during the marriage but it can only be valid if it is signed before the couple gets into any recognised form of marriage.

At the time of divorce or death, the property protected remains under the control of the person mentioned in the agreement. It is enforceable under the law of agreements.

This article was first published in Daily Nation

Additional reporting by Beatrice Nakibuuka

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