The Use of marital property agreements for the division of matrimonial property upon divorce in Kenya

Abstract

Marital agreements have been used for the division of matrimonial property upon divorce by couples for several years. However, their enforcement has been challenging. In Kenya the Matrimonial Property Act allows spouses to make ante nuptial/pre-nuptial agreements for the division of matrimonial property upon divorce. It however does not recognize post-nuptial and settlement agreements. This may pose a challenge to the realization of equality as per Article 45(3) of the Constitution. This research has looked into the importance of recognizing post-nuptial and settlement agreements and how they contribute towards promoting equality between spouses in the ownership of matrimonial property. The study was conducted through a review of existing literature on the subject of marital property agreements. It has also included a comparative analysis of the South African and English law on marital property agreements. The aim of the comparative analysis was to identify best practices from these jurisdictions that can be applied to the Kenyan system. Additionally, a historical analysis of the Kenyan matrimonial property laws has been done so as to understand the importance of ensuring equality between spouses in the ownership of matrimonial property. In order to ensure that marital property agreements promote equality between spouses, the study recommends that there should be principles or guidelines that direct the court in dividing matrimonial property upon divorce as well as in the implementation and enforcement of marital agreements and finally that the law should give explicit recognition to post-nuptial and settlement agreements