Can you insure your marriage?

Imagine sitting down with your spouse in front of a lawyer to lay out the rules that will govern your marriage.

You spell out what you will be entitled to should the marriage collapse.

You also state exactly how financial burdens will be split between the two of you and what punishment (or fine) your spouse should get for breaking such an agreement.

Welcome to the world of the pre-nuptial agreement, becoming popular with Kenyan couples.

In the West, couples draw up agreements that govern their relationships, more so their financial responsibilities and benefits in case a marriage breaks up within a certain period of time.

A pre-nuptial agreement is basically a signed document that spells out the financial consequences for a couple should a marriage end.

Both men and women can seek such an agreement, although no one should be coerced into it.

Take for example the celebrity agreement made between Jay Z and Beyonce in 2008. According to the Hollywood grapevine, Jay Z was keen to have Beyonce as his wife for no less than two years.

There were also financial incentives for the extra years they would be husband and wife.

Mine, yours, ours

According to details of the leaked pre-nuptial agreement, Jay Z has promised $10 million (Sh820 million) to Beyonce should the marriage last more than two years.

Beyonce would also be entitled to $1 million (Sh82 million) for every year she remains in the marriage.

The musician also put on pen and paper that Beyonce would earn $5 million (Sh410 million) for each child they would get on top of accessing their private jet and fleet of cars that includes a 1959 Rolls Royce.

Agreements among Kenyan couples may not be of the same financial magnitude, but this is because most of these agreements are not necessarily for divorce purposes.

Judging on the contents of a few agreements seen in confidence by Saturday Magazine, marital agreements are being commissioned by parties who are stable in their careers or business and have already acquired several assets, and would like to protect them.

Take Ben Kinyanjui’s (one name is changed to conceal identity) agreement, made early last year.

The 39-year old telecommunications expert signed a pre-nuptial agreement before he tied the knot. He remembers the afternoon at his lawyer’s office along Kenyatta Avenue.

“I felt like I was signing a document in a racket,” he says. Two years down the line, however, he appreciates the agreement he made.

“Each one knows what is expected of him or her,” he says. His wife, 37, an accountant, was hesitant when reached on phone.

“I really do not want to discuss this,” she said. “Ask him what you want. All I can say is that no one has failed to fulfil their part of their bargain.”

Other couples are realising the need for pacts to guide them when they are already married. These are called post-nuptial agreements.

“These dwell more on running affairs in the marriage rather than financial agreements,” says lawyer Zack Kimani.

“In the West, many agreements centre around a person’s financial status in case a marriage ends but in Kenya, they also govern certain parts of the relationship.”

Legal backing

According to Kinyanjui, the agreement is a kind of insurance in the marriage. ”We did it to draw a clear line from the beginning for the good of both of us.

”We made it clear that one had express authority over what he or she owned before the marriage. Anything we get after marriage is ours on a 50-50 per cent basis.”

But there is a catch; pre-nuptial agreements are not legally binding in Kenya. “Such a contract is inferior to the existing marriage laws,” says lawyer Robert Muriuki.

“For example, one cannot have an agreement on child maintenance or entitlement of matrimonial property in case of divorce because these are already taken care of under the current marriage and child laws.”

JM Waiganjo, another lawyer, agrees: ”Marriage laws are clear on many aspects of a marital relationship and any agreement between the parties is subservient to them.”

So what can a spouse seeking some sort of ‘insurance’ in their relationship do to make sure the agreement is enforceable by law? The easiest solution is to sign under the law of contract.

“This law does not care whether the parties are married or not. It only recognises the fact that the agreement is made by willing parties, and does not misrepresent any party,” says Mr Waiganjo.

According to him, however, these contracts can only cover the jurisdiction of moveable items such as the sale of property, stocks or vehicles to each other.

They cannot govern anything already catered for in the Marriage Act or other relevant sections of the law, or immeasurables such as infidelity.

“Even then,” Mr Waiganjo inists, “these agreements cannot be signed between two spouses. (The law does not recognise marital relationships when it comes to contracts).”

The legal clarification referring to pre-nuptial agreements might come as a shock to some modern couples who have already signed one. Edna K is one. She and her husband signed a pre-nup agreement last year.

“We thought we were already established before coming together,” says the mother of one. She is in her late 30s while her accountant husband, whose first wife died, is 43.

“We agreed on how to deal with the step children, how much of his time he would accord them and what percentage of his income would go towards their expenses. I wanted to be sure how certain things would be run in our union,” Edna says.

Preventing conflict

Edna, a businesswoman, says her husband was keen to avoid clashes over the step-children and his financial responsibilities with regard to the two sets of children. It was his idea to sign the paperwork before they got married.

“I think he was trying to reduce causes of conflict in the family. So far, so good,” she says.

Mr Waiganjo notes a clause on liabilities In Edna’s agreement. According to the agreement, her husband is responsible for the financial liabilities she had before, in this case a cooperative loan.

It was also agreed that he would be fully responsible for any financial liability incurred during the marriage in case she failed to fulfil it.

But there was one condition—such a liability would have been agreed upon before it was accrued. This apparently came up because Edna is a businesswoman while her husband is in formal employment.

“We anticipated that there would be times I might take loans and experience difficulty repaying them for various unforeseen reasons,” explains Edna.

Mr Waiganjo says financial liabilities are personal, more so because they could be part of another agreement with a third party.

“A spouse is not legally bound by the other’s financial liability and such an agreement can only be reached in the spirit of mutual understanding,” the lawyer says.

In a divorce case, a female Kenyan politician recently accused her estranged husband of having promised to pay her debts before she agreed to marry him.

She had a number of debts and according to her, the husband had reneged on his promise, making this one of the reasons she was ready to quit the marriage.

“The aspect of how a dispute that arises from the agreement will be solved is also part of this agreement,” says Mr Muriuki. “This could be through mediation, arbitration or sometimes in court,” he says.