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The rise of prenups in the modern marriage

Saturday March 14 2020

A prenup is like an insurance policy. You don't

A prenup is like an insurance policy. You don't take insurance because you anticipate getting sick or having an accident. PHOTO | SHUTTERSTOCK  

SIMON MBURU
By SIMON MBURU
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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.

"It is incredibly naïve to head into marriage thinking that divorce is 100 percent off the table," says Erin Lowry, the author of Broke Millennial: Stop Scraping By and Get Your Financial Life Together.

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 along Kangundo Road. By age 37, she was ready to get hitched. Then she met and married Cyrus—a mechanic from Kawangware.

Toy boys and couch potatoes on notice

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Five years down the line, Asha is now stuck in an abusive marriage. "He claims that I don't 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. "I never signed a prenuptial agreement. If I file for a 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 last week 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 didn't sow.

"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 don't believe marriage is an adequate reason to lose all you've 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 kids, or where you have decided that you don't 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.

Although Kenya does not have a prenuptial database, trends in other parts of the developed world point to a rise in the popularity of prenuptial agreements. 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.

Malindi woman saved by a prenup

Drawing and signing a prenuptial agreement can be a lifesaver. In the Civil Case No. 12 of 2015, a prenuptial agreement saved a lady identified by the court as Ms. M.B from losing a multi-million property she had acquired in Malindi. Ms. M.B had entered into a prenuptial agreement with Mr. M.B.K before marriage. In the case, Ms. M.B testified that she purchased the Malindi apartment in Malindi before their marriage. But Mr. M.B.K contested the prenup, saying that he should be given shares in the property. "The court finds that the property belonged to Ms. M.B before the marriage and is exclusively her property. That is the essence of the pre-nuptial agreement," the High Court in Malindi ruled.

Most times, when love is in the air, and butterflies raid the gut, it's easy to forget or fear to raise the issue of money. 'Baby, I love you but I need you to sign that you won't claim what is mine if we split' is a mood killer to many.

But that's precisely the right time to address the issue, experts say. That is, before you wear that ring. Murigi Kamande, an advocate of the High Court of Kenya says, "It may look like you are setting the marriage up for failure. That’s not true. You will be walking into the marriage fully aware of what you would be entitled to should things go south," he says.

"We have signed a prenup," admits Marion Obonyo while adding that it's a 'source of financial pride and independence rather than strife'

Fit for remarriage

The 36-year-old Nyahururu-based advocate says a prenup is like an insurance policy. "You don't 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 Ms. 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.

"These include assets with substantial value and appreciation such as real estate. The agreement will state that upon separation, these assets will not be divided between you. Instead, each party will walk away with their own assets and liabilities," a report by Kibatia Advocates on pre-marital agreements in Kenya, notes.

What does the law say about prenups?

Costs: Costs vary depending on the nature of the agreement in question and the kind of property involved. The least it may cost you will be Sh50, 000.

Sharing property: Article 45 (3) of the Constitution on Kenya, 2010, declares that in the event that you had acquired property prior to getting married and did not sign a prenup, you and your partner will automatically share matrimonial property equally in the event of divorce, irrespective of the contribution (or lack of) either of you made.

Spousal liabilities: Section 10 of the Matrimonial Property Act of 2013 states that any liability that was incurred by a spouse before marriage will remain the liability of the spouse who incurred it.

Polygamy: If your husband acquires a second wife, and you end up divorcing, the property you and your husband had acquired before the second wife came along will be divided equally between you and your husband alone. The second wife will not lay any claim. If the property is acquired after more wives come along, such property will be retained by the man and the wives.

Stay at home wives: The law also protects women who work from home or who are stay-at-home wives. For example, Section 2 of the Matrimonial Property Act No. 49 of 2013 defines contribution towards the acquisition of a matrimonial as including monetary and non-monetary contributions such as domestic work and management of the matrimonial home, child care, companionship, management of family business or property, and farm work.

By Advocate Murigi Kamande

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