By Daniel Benson Kaaya
“The law adopts a strict policy of requiring the demonstration of something unfair before it will open the Pandora’s Box of litigation where there has been an agreement of this nature (prenuptial)” – Mostyn J in BN vs. MA  EHWC 4250 (Fam)
Quintessentially, love should be the core of marriages. The idea of reproduction, consortium among other marital satisfactions, was considered sacrosanct and prestigious.
These core principles of marriage have eroded to become property-centred. This change has rendered marriages feeble and susceptible to mild tremors. Therefore, a discussion of distribution of matrimonial property becomes imperative. This is informed by the fact that property-centred marriages (which are many) are beleaguered with greed. Therefore, distribution modes are meant to regulate greed. This is to make certain that parties get deserving portions of the matrimonial property.
It has become evident, gradually, that what profoundly informs the choice of a partner is the property one has or the potency of acquiring a profitable property in the foreseeable future. Alas, it is not affection any longer! This change has been appreciated by the Matrimonial Property Act, 2013, (herein referred to as MPA) by giving two approaches of distributing matrimonial property: contribution towards acquisition approach and prenuptial agreement. In addition, the Constitution of Kenya, 2010, in Article 45(3) gives another slant – the equality approach.
The Grundnorm and the governing Act in matrimonial property both acknowledge that the nucleus of marriage has changed, from love to property, hence the distribution approaches. This change therefore implores a discussion of property rights or interests in matrimonial property.
Section 6 of the MPA defines matrimonial property and gives what property should not be considered matrimonial. Matrimonial property refers to “the matrimonial home or homes; household goods and effects in the matrimonial home or homes; or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage”. Trust property, including property held in trust under customary law, does not form part of matrimonial property.
According to the MPA, right in the matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and the division upon dissolution shall be according to that contribution. However, the Constitution in Article 45(3) provides for equal rights in the property. In contribution, a spouse only acquires a right in the property when he has made a contribution towards acquisition of that property. If contribution cannot be ascertained, then s/he cannot claim, successfully, upon dissolution of a marriage.
On the other hand, in equality approach, contribution towards acquisition is immaterial—each partner has an equal right towards the matrimonial property, whether they contributed or not. From these provisions, a legal contention of distribution of matrimonial property hatches: which one should be adopted?
The general rule in law is that where there is a conflict between laws, that which is more specific prevails. In this regard, the MPA should prevail. It is the regime of law that specially deals with matrimonial property, acquisition and distribution upon dissolution. However, Constitution faithfuls, or those who would want to benefit from the constitutional provision, would want to argue on the premise of constitutional supremacy. But this will be a discussion for another forum.
This piece seeks to discuss prenuptial agreement as the best mode of distribution and as an effective cure to the above mischief.
A prenuptial agreement (ante-nuptial, pre-marital) has been commonly defined as an agreement between two people made before their marriage (nuptial). The agreement is a binding contract governing support rights and property rights when divorce or death occurs. In the absence of a prenup, the law will dictate how the property is distributed. All other forms of distribution are subservient to a prenup, according to Section 7 of the MPA.
Prenuptial agreement (herein referred to as prenup) has been cited scarcely in MPA despite its serviceability in distribution of matrimonial property. Prenups are, quite noticeably, nowadays a functional method of both preserving a couple’s autonomy and protecting assets in the event of an unexpected eventuality – despite promises made in glory days, after which one party decides to lodge a legal challenge against the other. The advantage of a prenup is that parties can craft it to meet particular needs.
In Kenya, prenup is provided for under Section 6(3) of the MPA—the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. The vitiating factor to this agreement is if the agreement was influenced by fraud or coercion, or is manifestly unjust.
In order to circumvent the legal and moral convolutions of contribution towards acquisition and equality modes, adoption of prenup is imperative. With prenup, parties enter the marriage with explicit cognisance of their property rights among other rights encompassed therein. In other approaches, for example contribution, it is difficult to ascertain the level of contribution made towards the acquisition of property. On the other hand, equality disinters a raft of questions of “marital integrity” and laziness on either party. “Marital integrity” means people will be entering marriages with the corrupt vision of acquiring half-share of the matrimonial property, which should not be the case.
Mostyn J provided a helpful overview of the current law regarding pre-nuptial agreements, citing the landmark case of “Radmacher vs. Granatino”  1 AC 534. Mostyn noted that the test now, as a result of Radmacher, is that, “the court should give effect to a nuptial agreement that is freely entered into by each party, with a full appreciation of its implications, unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.”
Respect for autonomy
He considered that, in determining whether it would be fair to hold the parties to the agreement, one must have regard to the following: no agreement can be allowed to prejudice the reasonable requirements of a child; respect should be accorded to the decision of a married couple as to the manner in which their financial affairs should be regulated, i.e. there should be respect for autonomy; and no agreement can overreach basic needs.
Mostyn J continued that, in determining whether there was a full appreciation of the implications or corollaries of an agreement, there need not be full disclosure or full legal advice; rather there must not be a material lack of disclosure of assets or a material lack of legal advice. What is necessary is that each party should have the information that is material to his or her decision.
Prenup permits the couple to distinguish between what is marital and what is solely owned property. This distinction reduces or effectively effaces extended court proceedings and conflicts during a divorce. In addition, this distinction affords the proprietor of the property (not matrimonial) to enjoy exclusive possession, use and free disposal of the same. No consent is required on disposition of property if the property is not matrimonial. Therefore, a prenup affords autonomy and exclusivity in personal property.
From the foregoing it is evident that a prenup is a flexible approach in determining property rights. This makes it certain, definite and predictable compared to other approaches. If the agreement placates the requirements, or lacks the vitiating factors, the Court will adopt and enforce it. The simplicity, flexibility and spousal autonomy that it offers are what give it an edge over other approaches.