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What are the legal requirements for prenuptial agreements?

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Introduction

Prenuptial agreements, also known as antenuptial agreements, are contracts entered into by two individuals before their marriage, outlining the division of assets and liabilities in the event of divorce or death. In Kenya, prenuptial agreements are recognized and governed by the Matrimonial Property Act, 2013. This response will delve into the legal requirements for prenuptial agreements in Kenya, ensuring clarity and understanding of the process.

Sources
Legal Requirements for Prenuptial Agreements 2.1. Formalities 2.2. Content 2.3. Disclosure 2.4. Independent Legal Advice 2.5. Fairness and Voluntariness
Conclusion

Sources

Matrimonial Property Act, 2013
The Law of Succession Act, 2013
The Marriage Act, 2014

Legal Requirements for Prenuptial Agreements

2.1. Formalities

Prenuptial agreements in Kenya must be in writing and signed by both parties. The agreement must be witnessed by two credible witnesses, who are not parties to the agreement. The witnesses must sign the agreement in the presence of the parties.

Matrimonial Property Act, 2013, Section 11(1): "A prenuptial agreement shall be in writing and signed by both parties and witnessed by two credible witnesses who are not parties to the agreement."

2.2. Content

The content of a prenuptial agreement is not prescribed by law, but it must be clear and unambiguous. The agreement should specify the following:

Assets and Liabilities: The agreement should clearly identify the assets and liabilities of each party, including their value.
Division of Assets and Liabilities: The agreement should outline how the assets and liabilities will be divided in the event of divorce or death.
Financial Support: The agreement may include provisions for financial support for either party in the event of divorce or death.
Other Matters: The agreement may also include provisions for other matters, such as the custody of children, the division of property acquired during the marriage, and the payment of spousal maintenance.
Matrimonial Property Act, 2013, Section 11(2): "A prenuptial agreement may include provisions relating to the division of property, the payment of maintenance, the custody of children, and any other matter that the parties agree upon."

2.3. Disclosure

Both parties must fully disclose their financial circumstances to each other before signing the prenuptial agreement. This includes information about their assets, liabilities, income, and expenses.

Matrimonial Property Act, 2013, Section 11(3): "Before entering into a prenuptial agreement, each party shall disclose to the other party all material information relating to their financial circumstances."

2.4. Independent Legal Advice

Both parties must obtain independent legal advice from a qualified lawyer before signing the prenuptial agreement. The lawyer should explain the terms of the agreement and advise the party on their legal rights and obligations.

Matrimonial Property Act, 2013, Section 11(4): "Each party shall be advised by an independent legal practitioner before entering into a prenuptial agreement."

2.5. Fairness and Voluntariness

The prenuptial agreement must be fair and voluntary. This means that the agreement should not be unduly oppressive or unfair to either party. The agreement should be entered into freely and without duress or undue influence.

Matrimonial Property Act, 2013, Section 11(5): "A prenuptial agreement shall be fair and voluntary."

Conclusion

Prenuptial agreements in Kenya are a valuable tool for couples who wish to protect their assets and financial interests in the event of divorce or death. However, it is important to note that prenuptial agreements are not always enforceable. The courts have the power to set aside prenuptial agreements if they are found to be unfair or if they were not entered into freely and voluntarily. It is therefore essential to seek legal advice from a qualified lawyer before entering into a prenuptial agreement.