Articles

PRENUPTIAL AGREEMENTS IN KENYA: ARE THEY LEGALLY ENFORCEABLE?

Introduction

Marriage is not just a romantic union, it is also a legal contract. In today’s world, where couples may enter marriage with significant assets, children from previous relationships or business interests, many are turning to prenuptial agreements as a tool to safeguard their rights and expectations.

But are prenups recognized in Kenya? Can a couple truly agree on “who gets what” in case of divorce? In this article, B.I.K Advocates LLP explores the legality, enforceability, and practicality of prenuptial agreements in Kenya.

What Is a Prenuptial Agreement?

A prenuptial agreement, commonly referred to as a “prenup,” is a written contract entered into by two people before marriage. It typically sets out:

• Ownership of current and future assets
• Financial responsibilities during the marriage
• Division of property in the event of divorce or death
• Protection of family or pre-marital assets
• Terms relating to business interests or debt obligations

The purpose is to avoid disputes and provide clarity in case the marriage breaks down.

Are Prenuptial Agreements Recognized in Kenyan Law?

Kenya does not have a specific statute governing prenuptial agreements. However, courts have increasingly acknowledged their existence and relevance, particularly in divorce proceedings involving property division.

Legal backing is drawn from:

1. The Constitution of Kenya, 2010 (Article 40 on property rights)
2. The Matrimonial Property Act, 2013
3. Relevant case law, such as MWW v FN [2015]

Thus, while not legislated in detail, prenuptial agreements are enforceable—as long as

they meet the requirements of valid contracts and do not contravene public policy.

What Makes a Prenup Legally Binding?

To be considered valid and enforceable in Kenya, a prenuptial agreement must meet the following conditions:

1. Voluntary Agreement – Both parties must enter into the agreement willingly.
2. Full Disclosure – There must be complete transparency of assets and obligations.
3. Independent Legal Advice – Each party should ideally be represented by separate counsel.
4. Fair and Reasonable Terms – Courts may refuse to enforce an unconscionable agreement.
5. Written and Signed – Oral agreements are difficult to prove and rarely enforced.

What Can (and Can’t) Be Included in a Prenup?

A prenup can cover many aspects, such as:

• Property rights and asset distribution
• Spousal support terms
• Management of debts
• Rights to family or inherited assets
• Treatment of businesses or shares

However, certain provisions may be considered invalid:

• Child custody or support (these are determined by the court based on the child’s best interests)
• Clauses encouraging divorce or punishing a spouse
• Terms that are grossly unfair or contrary to public policy

Benefits of Having a Prenuptial Agreement

1. Provides clarity and certainty about financial expectations
2. Protects family wealth and pre-marital assets
3. Safeguards business interests
4. Prevents lengthy legal disputes
5. Promotes transparency and financial honesty

Can a Prenup Be Challenged or Set Aside?

Yes. A prenuptial agreement can be invalidated by a Kenyan court if:

• It was signed under coercion or duress
• One party failed to disclose significant assets or debts
• The terms are extremely unfair or one-sided
• Circumstances have changed to make enforcement unjust

In such cases, the court will rely on general legal principles to divide matrimonial property fairly.

Conclusion

Prenuptial agreements are not just for the wealthy; they are a practical legal tool for any couple seeking to enter marriage with clarity and security. While not yet common in Kenya, the law supports their use, provided they are fair, transparent, and well-drafted.

At B.I.K Advocates LLP, we offer confidential, personalized advice on prenuptial agreements and family law matters. Whether you’re planning to marry, reviewing your assets, or facing separation, we’re here to help you make informed legal choices.