What you need to know:
Experts agree a prenup can actually be a wise investment, not only because it outlines a couple’s finances, but because it can thwart a costly and contentious divorce if the marriage does not work out.
A prenup is a short form for a prenuptial agreement or pre-marital agreement. In a layman’s language, this is a legally-binding contract that entails how spouses will divide assets in case of a divorce. It is entered by parties prior to their union (marriage).
You might end up losing your property even after signing a prenuptial agreement. This is mainly because some partners can be crafty. Others will include or introduce clauses that give them an upper hand before, during and after your marriage.
However, you can avoid all this by knowing how to draft a proper and legally binding prenup.
Hope Eunice Samanya, the head legal department at Samanya Tuna Ltd, says the rationale for entering a prenup is to enable both parties to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce.
Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony (spousal support) with agreed-upon terms that provide certainty and clarify their marital rights.
A premarital agreement may also contain waivers of a surviving spouse’s right to claim an elective share of the estate of the deceased spouse and also conditions for guardianship of children.
“These prenup agreements are recognised in various law systems such as in Belgium, United Kingdom, and Netherlands, among others. However, these are not yet recognised in Uganda’s jurisprudence, although there is still hope for the same to be recognised in Uganda in the near future. It is important to note that the proposed Marriage and Domestic Bill of 2017 under objective eight recognises the same (prenutial agreements), however the bill is yet to be passed. This only means that prenups are unenforceable in Uganda,” she says.
According to Samanya, there are various things to look out for before signing a prenup and these include:
Hiring a competent lawyer, well versed in the current laws of your country and in drafting prenuptial agreements. This is because you want to protect your rights in case the marriage ends.
Both parties need to fully disclose their assets and liabilities.
One needs to determine if they want the prenuptial agreement to apply to divorce, separate support and inheritance-related matters. Additionally, both parties need to figure out what is individual property (which each owned before marriage and whether it will remain separate property). They also need to decide what will be marital property.
One needs to also ascertain whether a family member or close friend has named you as a beneficiary to inherit money, real estate and stocks, among others and discuss with your lawyer about disclosing that in your schedule before signing the prenup agreement.
Also, one needs to know that they cannot waive paying child support in a prenuptial agreement as it is against public policy and welfare principle which is the guiding principle in all matters relating to children. Children must be supported.
How about its timing?
The timing of signing a prenuptial agreement is at least thirty (30) days before your wedding day and not the day before your wedding as you want to make sure that it will hold up in court.
What should be contained?
You can include some or all the following specific provisions in your prenuptial agreement.
Separate/individual and marital assets. Identify and make a clear distinction of the division of both asserts.
Spousal support concerns
Special considerations if you have children from a previous marriage (a provision that will ensure that your children can inherit their share of your estate in the event of your death, if that is what you intend).
What should not be included?
There are some critical topics that cannot be included in a prenup, and you will need to address during the formal divorce process:
Child custody, parenting time, and child support.
Daily tasks or spousal duties during the marriage.
How can you spot a fake prenup?
• A prenuptial agreement requires each spouse to make full disclosure of their assets. In divorce, it is quite common for the husband to undervalue assets or fail to disclose them at all, so these assets cannot be made part of a settlement agreement. Unfortunately, prenups are prone to this kind of underhandedness, as well. If you can prove your husband or wife did not fully disclose their income or assets at the time you signed the prenup. That will render the agreement invalid.
• Where one can prove that the agreement was signed under duress or signed without mental capacity.
• There is a need for the agreement to be witnessed.
• Also, oral prenups are invalid.
Emma Opio, a lawyer, says a prenup is a contract. Therefore, each clause should be negotiated by both parties.
No clause that breaches the different laws of Uganda will be allowed.
The biggest concern in such agreements is the sharing of property. Here, parties agree on how, in the event of a divorce, their joint or matrimonial property will be shared. Currently, many persons also include clauses on alimony and child maintenance.
At the end of the day, a prenup must be entered into legally and abide by the different laws in Uganda. Each party should engage a lawyer to negotiate clauses in the said contract.