A CONTRACTUAL MARRIAGE: WHAT IS THE PLACE OF PRENUPTIAL
AGREEMENTS IN KENYA
Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree ,
Strathmore University Law School
By
MWAURA LUCY WANGARI
068799
Prepared under the supervision of
[Dr. John Osogo Ambani]
[January 2017]
Page I 1
Declaration
I, MWAURA LUCY WANGARI, do hereby declare that this research is my original work
and that to the best of my know ledge and belief, it has not been previously, in its entirety or
in part, been submitted to any other university for a degree or diploma. Other works cited or
referred to are accordingly ac..>-""-....:c
Signed: .
Date: 3.±..~ M.grc.h..~ ~.Q.).I. : .
This dissertation has been submitted for examination with my approval as . University
Supervisor.
Signed: .
[Supervisor's Name]
Page I 2
ACKNOWLEDGEMENT
I would like to thank God for giving me the breath of life, the health and the energy without
which I would not have been able to complete this paper.
I would like to express my gratitude to my father Harrison and my mother Elizabeth for
giving me an opportunity to study which eventually led to me writing this paper. Their
continued support and words of encouragement have kept me going and made me strong.
Finally I would like to express my gratitude to Professor Ambani for believing in my skills
and potential even when I did not think I had it in me.
Page I 3
TABLE OF CONTENT
CHAPTER ONE 5
WHAT IS THE PLACE OF PRE-NUPTIAL AGREEMENTS IN KENYA AND COULD
THEY BE THE HOPE OF AN END OF CONFLICTS ARISING UPON DISSOLUTION OF A
MARRIAGE 5
1.1 INTRODUCTION 5
1.2 LEGAL PROBLEM: 6
1.3 Hyp othesis 7
1.4 Objectives 7
1.5 Research Methodology 8
1.6 Limitation of Study 9
1.7 Literature Review 9
THE VARIOUS LOCAL AND INTERNATIONAL LAWS THAT GOVERN PROPERTY
RIGHTS UPON MARRIAGE 12
2.1 Introduction 12
2.2 The Republic of Ken ya 13
2.3 The Republic of South Afr ica 15
2.4 The Republic of Australia 17
2.5 The Republic of United States of America (USA) 19
CHAPTER THREE 23
CASE LAW ANALYSIS OF PRENUPTIAL AGREEMENT. 23
3.1 Introduction 23
3.2 The essence of'Voluntariness 26
3.3 Disclosure of material facts 27
3.4 Unconscionable or Unfair Terms 29
3.5 Consultation with an Independent attorney 30
CHAPTER FOUR 32
WHAT IS THE RELEVANCE OF PRENUPTIAL AGREEMENTS 32
4.1 Introduction 32
4.2 Conclusion 36
CHAPTER FIVE 38
CONCLUSION 38
5.1 Introduction 38
5.2 Restating the Legal Problem 40
5.3 Restating the Specific Objectives .41
BIBLIOGRAPHy 42
Page 14
CHAPTER ONE
WHAT IS THE PLACE OF PRE-NUPTIAL AGREEMENTS IN KENYA
AND COULD THEY BE THE HOPE OF AN END OF CONFLICTS
ARISING UPON DISSOLUTION OF A MARRIAGE.
1.1 INTRODUCTION
The laws of Kenya define a marriage as a voluntary union between a man and a woman
whether in a polygamous or monogamous union and must be registered in accordance with
the Marriage Act'. The Holy book defines marriage as an intimate and complementing union
between a man and a woman where they become one body in flesh till death separates thern-,
From the legal definition and a sentimental approach to marriage it is not difficult to draw
that , indeed marriage is a very important stage within one's life cycle. Therefore it is prudent
for one to enter this union with a degree of legal and psychological preparedness. Hence
prenuptial agreement is one such step towards preparedness.
A prenuptial agreement is a form of consensus that parties, intending to marry, state the fate
of their property they presently own and even the property they shall acquire in the course of
their marriage. Pre-nuptial agreements have been legalised in Kenya' where the Matrimonial
Property Act of 2013 , states that parties to an intended marriage may enter into a pre-nuptial
agreement to determine their property rights" .
However with this said , sadly it is not common and not largely practiced in Kenya. Maybe
this could be owed to the Kenyan culture, upbringing or even religious faith. The Kenyan
culture .especially, has informed the way in which Kenyans approach marriage example: in
some communities marriage is arranged by the parents and the partners mayor may not have
a say in it. So if parties are not even allowed to contribute or choose whom to marry; then
what about construction of a prenuptial agreement which is far more complicatedl' Well ,
your guess is as good as mine.
1 Section 3, Marriage Act , 2014.
2 Genesis 1:26-27 and Galatians 3:28, The Holy Bible, New International Version.
3 http://www.academia.edu/I 3746937/Legal_status_of-prenuptial_agreements_in_Kenya.
4 Section 6 (4), Matrimonial Property Act, (2013).
5 Ngugi Wa Thiongo, ' The River Between' (1995) .
Page I 5
Although Kenyan Constitution declares Kenya to be a secular state", key religious groups
have also a played a key role in un-popularising prenuptial agreements. Religious figures
argue that prenuptial agreements distract couples from the ' five C's of marriage'. These are
communication, commitment, conflict resolution, children and church." As one clergyman
cautions, "people have to be prepared for the idea that marriage is work. It's not just a
merging of assets", Therefore it is quite clear that the religious forum is not in full support of
prenuptial agreements.
Other right thinking members of society, view a prenuptial agreement as a worst way to begin
a marriage. Others view it as an impediment to individuals focused on one of life's strongest
emotions which is love . Others, that it does not conjure an image of marital equality.
Prenuptial agreement are also seen as portraying a lack of trust in one 's partner. Other
objections include allegations that prenuptials dampen the romance in a marriage, introduce
the grasping morals of the market place into an intimate relationship and it places too much
emphasis on the interest of an individual at the expense of the common good of the couple".
With these impediments listed above, this paper seeks to create an awareness of the nature,
function and importance of prenuptial agreement and demystify the myths which have caused
pre-nuptial agreements to be such an infamous phenomena.
Therefore this thesis is based on the following legal problem:
1.2 LEGAL PROBLEM:
Is there a need for parties to have a prenuptial agreement in Kenya?
There is great opportunity for pre-nuptial agreements if the Matrimonial Property Act "was
interpreted widely to mean that pre-nuptial agreements could be entered before a marriage,
during marriage or even upon dissolution of a marriage I I. In addition, if an awareness was
created to parties intending to marriage.
6 Article 8, Constitution ofKenya, 20 IO.
7 Allison A. Marston, 'Planning for Love: The Politics of Prenuptial Agreements ' 4 Stanford Law Review,
(/997),887-917
8 Allison A. Marston, ' Planning for Love : The Politics of Prenuptial Agreements' 4 Stanford Law Review,
(1997),887-917
9 Allison A. Marston, ' Planning for Love: The Politics of Prenuptial Agreements' 4 Stanford Law Review,
(/997) ,887-917.
10 Section 6, Matrimonial Property Act, (2013).
11 Belinda Fehlberg and Bruce Smyth, ' Binding Pre-nuptial Agreements in Australia - The First Year '
International Journal ofLaw, Policy and the Family 16, (2002), 127-140.
Page I 6
There is great opportunity for this agreement especially to the young wealthy couples of the
2151 Century who quickly contract a marriage without proper counselling and guidance from
their elders and within a short time , the marriage is in the drain!'.
Prenuptial agreement are very important because:
• They state the fate of property acquired before marriage and within a marriage, It also
states how such property may be shared out between the spouses and among the
children if any 13.
• They protect a wealthy party from having to share his wealth in the case where the
other party fraudulently and pretentiously procured the marriage in order to have a
share of the wealth!",
• Reduced conflict upon the breakdown of the marriage.
• Greater choice of parties to the agreement to order their own financial affairs (instead
of leaving it to the court to decide on their behalf")
• Pre-nuptial agreement could work the same way as a will, hence parties may not be
subject to intestacy rules.
1.3 Hypothesis
Prenuptial Agreements have been provided for under Matrimonial Property Act however
have they been enforced or validated in Kenya. When these prenuptial agreements are
enforced in Kenya can it be a tool to foster harmony and solidarity in marriages in addition to
this can it be a tool to eliminate the rising cases of divorce.
1.4 Objectives
General Objective
The objective of this study is to create an awareness to the Kenyan populace of the existence
of pre-nuptial agreements. That they do exist and can be drafted before solemnization of a
marriage and even for those who are already within a marriage union that they can still draft a
12 Allison A. Marston, ' Planning for Love: The Politics of Prenuptial Agreements ' 4 Stanford Law Review,
(J99 7), 887-91 7.
13 Belinda Fehlberg and Bruce Smyth, ' Binding Pre-nuptial Agreements in Australia - The First Year'
International Journal ofLaw, Policy and the Family 16, (2002), 127-140.
14 Gail F. Brod, 'Premarital Agreements and Gender Justice' Yale Journal ofLaw and Feminism (1993) .
15 Belinda Fehlberg and Bruce Smyth, 'Binding Pre-nuptial Agreements in Australia - The First Year'
International Journal ofLaw, Policy and the Family 16, (2002), 127-140.
Page I 7
pre-nuptial agreement. Where they can expressly state their individual interests in regards to
property and the fate of such property upon dissolution of a marriage.
To demystify the myths surrounding pre-nuptial agreements. Some think that it is an
agreement on how to end a marriage, others say it is a bad way to begin a marriage while
others think marriage is about love and hence love should dictate how parties conduct their
day-to-day affairs and not a pre-nuptial agreement. They say that knowledge is power. Hence
my task shall be to bring out the merits versus demerits of a pre-nuptial agreement and strike
a balance of whether they are a necessary evil.
Specific Objectives
To analyse the place of pre-nuptial agreements in Kenya and what laws are there in place to
govern them.
To discuss the purpose and importance of pre-nuptial agreements. What role do they play in
marriages and how have they fostered harmony in marriages. Also have a look at the
drawbacks of having pre-nuptial agreements. In relation to this, the study shall attempt to
draw a comparison between a pre-nuptial agreement and a will.!"
To discuss the contents of a pre-nuptial agreement. Should they have a particular format?
What are the particular clauses the agreement should have? What is the scope of a pre-nuptial
agreement? Can a pre-nuptial agreement cover all interest of the parties?' ?
To conduct a case analysis to evaluate how courts perceive pre-nuptial agreements. To
examme which clauses within a pre-nuptial agreements, have remained unenforceable to
date".
1.5 Research Methodology
Information for this study shall be obtained in the following way :
I. Secondary source
The secondary sources shall include written works on the subject matter of Pre-nuptial
Agreements. These include statutes such as the Marriage Act and Matrimonial Property Act
16 Mweresa Eugene Sudi , 'Pre-nuptial Agreements: Blessing or Curse?' (20 I5).
17 Allison A. Marston, ' Planning for Love : The Politics of Prenuptial Agreements' 4 Stanford Law Review,
(/997), 887-917.
18 Belinda Fehlberg and Bruce Smyth, ' Binding Pre-nuptial Agreements in Australia - The First Year'
International Journal ofLaw, Policy and the Family 16, (2002), 127-140.
Page I 8
of Kenya. Online sources such as journal articles. It shall also include judicial precedents
both in the local and international arena.
1.6 Limitation of Study
This study is subject to the following limitations:
II. The jurisprudence on pre-nuptial agreements has not developed in Kenya. This is for
the reason that pre-nuptial agreements are not common in Kenya unlike in other
States such as Australia.
III. Therefore, majority of the sources used are from foreign jurisdictions.
IV. Therefore, some principles advanced by the international scholars may not apply
within the Kenyan jurisdiction.
1.7 Literature Review
This refers to the existing works or writings on the subject matter. One of the greatest
scholars on Family Law and matters of Pre-nuptial Agreements is Dr Judith Younger from
the University of Minnesota. She is authored several journal articles on the subject of Pre-
nuptial agreements together with other authors who shall be listed below.
• Belinda Fehlberg and Bruce Smyth, 'Binding Pre-nuptial Agreements in Australia -
The First Year ' International Journal ofLaw, Policy and the Family 16, (2002), 127-
140. This Article analyses the effectiveness or lack of it, of prenuptial agreements
within Australia and what lessons Australia has learnt after a year of application of
pre-nuptial agreements and recommendations of possible amendments for the
efficiency of the agreements 19.
• Allison A. Marston, ' Planning for Love: The Politics of Prenuptial Agreements' 4
Stanford Law Review, (1997), 887-917. This article examines the increasing use of
prenuptial agreements in America , the clauses that a court mayor may not enforce
within a pre-nuptial agreement'",
• Jonathan E. Fields, ' Forbidden Provisions in Pre-nuptial Agreements: ' Legal and
Practical Considerations for the Matrimonial Lawyer' (2008). This article shall
discusses certain provisions within a pre-nuptial agreement that would be rendered
void or voidable by a court of law. It also discusses the importance of having an
19 Belinda Fehlberg and Bruce Smyth, 'Binding Pre-nuptial Agreements in Australia - The First Year'
International Journal ofLaw, Policy and the Family 16, (2002), 127-140.
20 Allison A. Marston, 'Plann ing for Love: The Politics of Prenuptial Agreements' 4 Stanford Law Review,
(/997),887-917.
Page I 9
advocate to assist In the drafting of these agreements so as to limit Issues of
technicalities and ambiguity".
• Ivor Weintraub'", 'Benchmarks: Tying the Note around Pre-nuptials' Law Society
Gazette (2003). This article examines the obiter dicta and ratio decidendi of different
cases that have been brought to court. It outlines some of the clauses, within a pre-
nuptial agreement, that are void or voidable. It also discusses the courts attitude
towards these agreements and how they are enforced".
• Gail F. Brod, 'Premarital Agreements and Gender Justice' Yale Journal of Law and
Feminism (1993). This article brings the rights of women to perspective. It states that
pre-nuptial agreements ensure equality of for both women and men but most
specifically it protects women who are capital inferior."
• Posner v Posner, 206 So.2d 416 (Fla. Dist. Ct. App. 1968). This case shall be
important for our discussion as it looks into the enforceability of pre-nuptial
~-
agreements".
1.8 Chapter Breakdown
Chapter one: The background and introduction of the study. The objectives of the study . The
research methodology to be used in the conduct of the study and possible limitations subject
to this particular study.
Chapter two: Analyse the different laws that govern mamage and matrimonial property.
Evaluate how this laws come into play within the pre-nuptial agreement. Conduct a
comparative study between the Kenyan Laws on pre-nuptial agreements with those from
other jurisdictions such as South Africa as its jurisprudence on marriage is quite developed,
and California which is a federal state of the United States of America and is a civil law state
with developed jurisprudence on the issue of marriage and prenuptial agreements.
Chapter three: Shall conduct an analysis of the various cases regarding pre-nuptial
agreements. How courts perceive these agreements. Using decided case, the study shall strive
to draw a conclusion on the types of clauses that ought to make content of the pre-nuptial
agreement (meaning those that are enforceable and those that are not) .
21 Jonathan E. Fields, 'Forbidden Provisions in Pre-nuptial Agreements: Legal and Practical Considerations for
the Matrimonial Lawyer' (2008).
22 Ivor Weintraub, is a District Judge, who sits at Bournemouth County Court.
23 Ivor Weintraub, 'Benchmarks: Tying the Note around Pre-nuptials' Law Society Gazelle (2003).
24 Gail F. Brod, 'Premarital Agreements and Gender Justice' Yale Journal ofLaw and Feminism (1993).
25 Posner v Posner, 206 So.2d 416 (Fla. Dist. Ct. App. 1968).
Page 110
Chapter four: Discuss the purpose and importance of pre-nuptial agreements. What role do
they play in marriages and how have they fostered harmony in marriages. In relation to this,
the study shall attempt to draw a comparison between a pre-nuptial agreement and a will.
Chapter five: Shall contain the conclusion. Where it shall attempt to give recommendations of
the importance or lack of it, of pre-nuptial agreements. Recommendations on any
amendments of the Kenyan laws to foster efficiency of the pre-nuptial agreements.
However, above all, this study aims to show the Kenyan why they should or should not enter
into a pre-nuptial agreement.
Page 111
CHAPTER TWO
THE VARIOUS LOCAL AND INTERNATIONAL LAWS THAT
GOVERN PROPERTY RIGHTS UPON MARRIAGE
2.1 Introduction
Chapter one has outlined a brief summary of what this dissertation seeks to analyse. It states
in its introduction that prenuptial agreements, especially in Kenya , are still at the infant stage.
That the laws have merely recognised the existence of prenuptial agreement 'but has not
taken a step further to outline what should constitute the agreement. Therefore, in line with
this observation arose the legal problem which is: "Is there a need for prenuptial agreements
in Kenya" and in addition to this how will they be enforceable in Kenya. It has also outlined
hypothesis which are questions that this paper shall endeavour to respond in each subsequent
chapter.
This chapter is very important as it endeavours to discuss the history of law making in the
field of prenuptial agreement. Before the recognition of pre-nuptial agreements their existed
other laws that guided how property rights would be allocated once parties have entered into
a marriage. Therefore, we shall take a look at the history of the law making process in regards
to matrimonial property, the rules that were promulgated to govern the same. Then we shall
look at how the law has evolved that they now recognise prenuptial agreements.
This Chapter shall make a flashback of how countries such as Kenya , South Africa , Australia
and United States of America have soldiered the journey of the law making process of
allocation of property rights within a marriage to present where they have recognised the role
of prenuptial agreements in the quest of property rights allocation within the marriage. This
history is very important as it reflects the beginning of the journey in regulation of
matrimonial property. These laws were enacted to remedy a mischief or a problem that had
arisen at that time in society. However, as you shall soon see, even after promulgation of
matrimonial property laws the mischief was not entirely dealt with. Spouses continued to be
in conflict on who owned what within a marriage.
Therefore, that is where the prenuptial agreements come in. The courts although reluctant at
the beginning saw that indeed these agreements were essential and needed to be validated or
I Section 6, Matrimon ial Property Act, 20 I3.
Page I 12
made enforceable for the benefit of eliminating the said conflicts. We shall first look at
Kenya, see what laws they have enacted to regulate and property regime within a marriage
then assess their level of evolution into pre-nuptial agreement. Then we shall look at South
Africa, then Australia and finally compare the three countries with the United States of
America whose jurisprudence has greatly involved in the subject matter of prenuptial
agreements.
2.2 The Republic of Kenya
As already mentioned in chapter one, the matter of prenuptial agreements is anchored upon
section 6 (3) of The Matrimonial Property Act which provides that parties can enter into an
agreement before their marriage to determine their property rights.? This Act is part of the
large body of family laws which have been enacted and others appealed. Therefore at this
juncture we shall briefly have a look at the reforms that have taken place in marriage and
family laws and what effect they have had on prenuptial agreements.
It is imperative that family laws undergo reforms due to universalisation, egalitarianism and
secularisation of the Kenyan society , however this change has not been a ride in the park due
to some of the challenges mentioned in chapter one but the biggest being that the Kenyan
society remains patriarchal grounded on deep rooted culture that subordinates women to men".
However over the years Kenya has signed and enacted some international conventions that
eliminate this archaic culture such as Covenant on Civil and Political Rights (ICCPR),
International Covenant on Economic Social and Cultural Rights (ICESCR) and Convention
on the Elimination of all forms of Discrimination against Women (CEDAW).
Kenya is under an obligation to actualise the above mentioned instruments, one of the
obligations being to eradicate any discrimination against women in all aspects of life
including laws pertaining to marriage. In the economic aspect, there has been a shift of the
architype where women have become financially empowered hence their reliance on men for
financial support has greatly reduced and this has led to a partnership model in marriages."
Now husband and wife are considered equal spouses each with their own legal identity.
2 Section 6(3), Matrimonial Property Act, 2013 .
3 Nancy Baraza, "Family Law Reforms in Kenya : An Overview", Presentation at Heinrich Boll Foundation's
Gender Forum in Nairobi, 30th April, 2009.
4 Nancy Baraza, " Family Law Reforms in Kenya : An Overview", Presentation at Heinrich Boll Foundation's
Gender Forum in Nairobi, 30lh April, 2009.
Page I 13
Consequently, the marital relationship is now constituted as of personal choice with the
parties hoping to obtain happiness through intimate association with each other",
The law pertaining to Matrimonial Property is governed by the Constitution of Kenya 20 I06,
Matrimonial Property Act of 20 137 and the Law of Succession Act of 19728• However before
these Acts came into play, it was governed by Matrimonial Causes Act 9and the Married
Women's Property Act!" . Prior to this , the English common law applied the doctrine of
covertures where a wife had no legal capacity to hold property in her own right and to
transact in it. This is for reasons that the law considered spouses as one entity, embodied in
the husband. 90-The consequence of this was that any property she owned before and after
marriage were seized by the husband and the wife had no legal capacity to dispose of the
property II .
The Married Women Property Act, came to remedy this situation by recognising that women
have legal capacity to own property and transact in it as unmarried women 12. In the case
where ownership of property was in dispute within the marriage then the husband or wife
could apply to the High court and the judge would make orders in respect to property in
dispute':'.
These English pieces of legislation were applicable to Kenya by virtue of section 3 of the
Judicature Act which states that "where written laws do not extend or apply, courts may also
apply the substance of common law, doctrines of equity and Statutes of General Application
in force in England on 12th August, 1897 so long as the circumstances of Kenya and its
inhabitants permit"!"
The Married Women's Property Act has been used in deciding cases concerning dispute in
property between a husband and a wife . In one such case is](arallja V](arallja l5 where the
wife brought an action under section 17 and she alleged that she had made financial
5 Nancy Baraza, " Family Law Reforms in Kenya: An Overview", Presentation at Heinrich Boll Foundation's
Gender Forum in Nairobi, 30th April, 2009.
6Constitution 0/Kenya , (2010)
7 Matrimonial Property Act, (No. 49 of20 13).
8 Law ofSuccession Act, (No . 14 of 1972).
9 Matrimonial Causes Act, CAP 152
10 Married Women Property Act, 1882.
II Nancy Baraza, "Family Law Reforms in Kenya : An Overview", Presentation at Heinrich Boll Foundation's
Gender Forum in Nairobi, 30th April, 2009.
12 Section I & 2, Married Women's Property Act, 1882.
13 Section 17, Married Women's Property Act, 1882.
14 Section 3, Judicature Act (Act No. 14 of 1977).
15 Karanja v Karanja (1967) Kenya Law Reports, 307.
Page 114
contributions towards the purchasing of the matrimonial property. Her husband on the other
hand maintained that even if that was the case, under Kikuyu Customary law a woman was
not permitted to own property and therefore his wife's claim could not stand. The court stated
that although customary law was a source of law, it was bound to reject it, as it contradicted
the MWPA which is a written law. Therefore it awarded the wife one-third of the property. 16
Though the Married Women's Property Act greatly built the jurisprudence on ownership of
property by women, it ceased to apply in Kenya after the enactment of Matrimonial Property
Act of 2013 . 17This Act is the first substantive piece of legislation that addresses the lacunae
in marital property regime". It defines what a matrimonial property is under section 619, what
constitutes as contribution to the said matrimonial property-Pend last but not least it makes a
provision for pre-nuptial agreements which are the subject matter of this dissertation.
The perception of married women has changed from the mid nineteenth century when they
were not recognised and had no legal capacity to own property, when their extended family
could easily storm in and take property upon their husband's death and now to brighter days
where they can not only own property in their own names (separate legal capacity) but can
also pioneer and enter into pre-nuptial agreements to determine their property rights" .
2.3 The Republic of South Africa
South Africa has demonstrated a great understanding of the matter of matrimonial property in
the development of their laws as discussed below. South Africa seem to have an already
established property regime which they termed as community of property provided by the
state, however for couples who would like to exercise their right to determine property rights ,
they enter into an ante-nuptial agreement. Therefore, South Africa has a rich jurisprudence on
the subject matter and have even made a step ahead to recognise and enforce prenuptial
agreements. Their jurisprudence can serve as a great guide to any country wishing to draft
laws on prenuptial agreement and how they would go about it.
16 Karanja v Karanja (1967) Kenya Law Reports, 307.
17 Section 19, Matrimonial Prop erty Act, 2013.
18 Nancy Baraza, "Family Law Reforms in Kenya: An Overview", Presentation at Heinrich Boll Foundation's
Gender Forum in Nairobi, 30th April, 2009.
19 Section 6 of the Matrimonial Property Act defines matrimonial property as matrimonial home, household
goods and effects in the matrimonial home, any other movable and immovable property jointly owned and
acquired during the subsistence of the marriage.
20 Contribution can be in monetary and non-monetary form.
21Judith T. Younger, "Lover' s Contracts in the Courts: Forsaking the Minimum Decencies", 13 Wm. & MGlY 1.
Women & L. 349 (2007) hllp:i!www.scholarship.law.wln.cdu!wmjowl!voI13!iss2!'l
Page 115
In South Africa this kind of agreement is termed as an Ante-nuptial agreement.F When
parties enter into this agreement they are opting out of the normal community of property
matrimonial system ." Couples entering into a marriage have three options to choose from, to
determine the ownership of their matrimonial property.
2.3.1 The Accrual System
During the era of out of community of property each spouse owned property separately in
addition to the profit and loss of the property. This proved to be very unfavourable especially
to married women or housewives who had no independent source of income because upon
dissolution of the marriage such women were left destitute and could not claim maintenance
against their husband's estate" .
Therefore, the Matrimonial Property Act 88 of 1984 developed the Accrual system to curb
the mischief of out of community property that was very detrimental to the women. The
Accrual System was developed on the premise that both spouses ought to have a stake in the
property acquired during the marriage so long as they had both made direct or indirect
contribution during the marriage. 25
All marriages concluded after the commencement of the Matrimonial Property Act 88 of
1994 are subject to the Accrual system however parties who wish not to apply this system can
enter into an ante-nuptial agreement stating that they prefer the out-of-community method of
property ownership".
2.3.2 Exclusion of both Community of Property and Community of Profit and Loss
As already mentioned above , prior to the Matrimonial Property Act of 1984, each spouse
retained the property they had before the marriage and also retained what each had acquired
during the marriage (community of property and community of profit and 10ss).27 However
with the coming of the above mentioned Act came the Accrual System where the parties to
the marriage would all have a stake in the property so long as they had made some form of
22 Section 2, Matrimonial Property Act 88 of1984, South Africa.
23 D. Cronje & J. Heaton, South African Family Law, (1999), page 107.
24 D. Cronje & J. Heaton, South African Family Law, (1999), page 118.
25 D. Cronje & J. Heaton, South African Family Law, (1999), page I 17.
26 D. Cronje & J. Heaton, South African Family Law, (1999), page 117.
27 D. Cronje & J. Heaton, South African Family Law, (1999), page 116
Page I 16
contribution. The Accrual System automatically applied to marriages concluded after 1984
however parties could enter into an ante-nuptial agreement stating the exclusion of both
community of property and profit and loss just for the purpose of emphasis."
2.3.3 Exclusion of Community of Property but retaining Community of Profit and
Loss
This means that each spouse owns and holds their separate property acquired before and
during the marriage (exclusion of community property) but any profit or loss that may arise
within the marriage is merged into the joint estate. 29The parties enter into an ante-nuptial
agreement stating that each spouse holds its property separately but profit and loss arising
from joint assets are shared equally. This system is hardly ever adopted by parties.
However, even after procuring the marriage, the couple has an opportunity to still choose or
change their mind on which regime of ownership of property they would like for their
marriage. However, for the change to be admissible in court the parties must bring forth
sound reasons to convince the court. In the case Ex Parte Burger. 1995 the couple married
and entered into a pre-nuptial agreement with the regime of complete separation of property
however later in their marriage they felt that they would be more happy if their ante-nuptial
agreement was in accordance with the Accrual system as the wife would have a share in the
appreciating estate of the husband. The South African Court allowed this request and granted
the change stating that the couple had advanced sound reasons.'?
2.4 The Republic of Australia
Australia is instrumental especially because of the fact that it is a common law jurisdiction.
This make it very easy to analyse their laws and possibly adopt them in Kenya. Australia is
among the developed countries hence their laws are also quite developed. Their courts
recognised premarital agreements so long as they only pertained to financial matters."
28 D. Cronje & J. Heaton, South African Family Law, (1999), page 117.
29 D. Cronje & J. Heaton , South African Family Law, (1999), page 117.
30 Ex Parte Burger [1995] 1 S.A. 140.
31 Family Law Act , (1975) (Australia).
Page I 17
The rich jurisprudence of pre-nuptial agreements in Australia can greatly be utilized by states
such as Kenya to guide in their own development of laws on the subject matter of pre-nuptial
agreements.
Binding prenuptial agreements were not adm issible in Australia however they were
introduced into Australian law on 27th December, 2000. Prior to this , only binding financial
agreements between spouses could be entertained. These agreements could only be entered
into upon separation and had to be court registered.F
The existence of a pre -nuptial agreement was viewed as important but not decisive, to how
the Family Court's broad discretion under the Family Law Act of 1975 33to alter interests in
property on separation and divorce would be exercised. Therefore prenuptial agreements
could only be entered into upon separation of the parties and had to be registered in court."
Before 27th December, 2000 separating spouses, upon their wish, could enter binding
financial agreements as provided under section 86 and 87 of the Family Law Act which had
to be registered in court in order for it to be enforceable. The content of the prenuptial
agreement could include settlement of property, spousal maintenance -and matters concerning
the children. 35
The legislatures with the mandate of the people felt that this legal regime needed to be
amended. They asserted their right to property and the right to ascertain how they would want
to share out their property. They felt that they should not wait until upon the dissolution of a
marriage in order to assign property rights, they wanted to be in control of their property even
before marriage. The introduction of a legally binding pre-nuptial agreement was
recommended by the Australian Law Reform Commission's Matrimonial Property Report
and by the Joint Select Committee on Certain Aspects of the Family Law Act during the
period of 1982. 36 Therefore, in February 1999 this process of amendment began with a press
statement by the federal Attorney General where he stated that the rationale for the proposed
amendment was the benefits that accrue from recognising a pre-nuptial agreement. There
was a lot of 'deliberations and brainstorming on this matter especially during the second
32 B. Fehlberg and B. Smith, "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16 (1): 127.
33 Family Law Act, (1975), Australia.
34 B. Fehlberg and B. Smith , "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16 (1): 127.
35 Section 86 and 87, Family Law Act (1975) Cth.
36 B. Fehlberg and B. Smyth, ' Pre-nuptial Agreements of Australia: Why not? ', 14 Australian Journal ofFamily
Law 80.
Page 118
reading in the Senate and this led to an inquiry by the Senate Legal and Constitutional
Committee into the Bill. The Committee reported to the House, recommending that binding
pre-nuptial agreements should be introduced.'?
Therefore, this led to the Family Law Amendment Act of 2000, with the insertion of Part
VIIIA. The new Part VIII of the Family Law Act provides that couples can enter into a
prenuptial agreement before marriage.", during marriage 390r upon dissolution 400 f a marriage
on matters concerning the property they have at present and a clause for those that they shall
acquire in the future, spousal maintenance"! and any other incidental and ancillary
matters.P'l'he Act goes ahead to state the criteria the Act must satisfy in order for it to be
enforceable, one of them being that the parties must receive legal counsel before executing
the prenuptial agreement. 44This shall further be discussed in chapter 3.
The inclusion of Part VIIIA into the Family Law Act brought two major changes in the
Australian Family Law regime. These are:
I. The introduction and recognition of pre-nuptial (financial) agreements that can be
entered into before marriage, during marriage and upon dissolution of a marriage."
II. No court supervision or registration of the agreement. This role of overseeing the
validity of the pre-nuptial agreements was shifted to the family lawyers."
2.5 The Republic of United States of America (USA)
United States of America has well developed jurisprudence on the subject matter of pre-
nuptial agreements. Being a former colony of the United Kingdom, they shared in their
reluctance to enforce pre-nuptial agreements. They understood pre-nuptial agreements to be a
precursor to divorce. They felt like prenuptial agreements were like parties planning for their
37 B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16 (I): 127.
38 Section 90B, Family Law Act , (2000) .
39 Section 90C, Family Law Act, (2000).
40 Section 900, Family Law Act, (2000).
41 Section 90B (2) , 90C(2) and 900(2), Family Law Act, (2000) .
43 B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16 (I): 127.
44 B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16(1): 127.
45 B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16 (I): 127.
46 B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16(1): 127.
Page 119
divorce and this considered to be legally improper. However, with time this has changed and
parties are able to draft a pre-nuptial agreement and courts have held them to be enforceable.
The United States is another example of a state that has good jurisprudence on the subject
matter of pre-nuptial agreements and can serve as a great guide to states that wish to legislate
on pre-nuptial agreements.
Before 1970, prenuptial agreements that outlined the disposition of property especially upon
divorce were frowned upon and hence unenforceable in the USA. However pre-nuptial
agreements detailing the property rights of a surviving spouse upon the death of the other
partner were enforceable. Courts in the USA had frowned upon pre-nuptial agreements as
spouses seemed to be contemplating divorce yet they felt marriages were legally binding and
ought to last forever. The USA courts have put forth several reasons why they were reluctant
to enforce prenuptial'". They stated verbatim that:
The pre-nuptial agreement seemed as a contemplation for divorce, the agreement was
contrary to the whole concept of marriage and hence legally improper, prenuptial agreements
sabotaged and destroyed the dignity and sacredness of the marriage institution, that these
agreements would bother the courts with ceaseless minor issues, it would leave dependent
wives without income, rich spouse in the marriage would abandon their spouse and the most
important it would cause spouses to stomach unfavourable marriage conditions due to fear of
losing their property rights." The Supreme Court of Alaska opined the same when they stated
that, prenuptial agreements went contrary to the State's interest which is to preserve marriage
and maintain financial security of both spouses."
Though pre-nuptial agreements faced a lot of scepticism, it was a new light that could not be
dimmed. It was time for the court to change their paternalistic view of interpreting the law
and give pre-nuptial agreements the legal recognition that they deserved. Therefore, in 1970,
there was a ground breaking ruling in the case of Posner v Posner'". In this case the wife
brought a suit against her husband where she sought for divorce on the grounds of extreme
cruelty by the husband. She also sought alimony to support the children and a decree that the
ante-nuptial agreement between the parties was void.l'The court held that the ante-nuptial
47 Gould v Rafaeli, 822 S.W.2d 494 (Mo. Ct. App.) (1991).
48 Gould v Rafaeli, 822 S.W.2d 494 (Mo. Ct. App.) (1991) .
49 Brooks v Brooks , 733 P.2d 1044, 1048 (Alaska 1987).
50 233 So 2d 381 (Fla 1970).
5\ Posner v Posner , 233 So 2d 381 (Fla 1970).
Page I 20
agreement was valid and enforceable.52 A new precedent had been set and the courts no
longer held on to the traditional idea that such agreements were contrary to public policy.
Therefore the Federal States went ahead to change their laws and currently every states
allows at least some kind of divorce-focused pre-nuptial agreement to be enforced, though the
standards for regulating such kind of agreements vary from state to state. 53
Since the United States of America is composed of fifty states there is need to have some
form of uniformity in their laws especially on matters concerning prenuptial agreements.
Therefore the National Conference of Commissioners on Uniform State Laws appointed a
Drafting Committee composed of various famous personalities especially in the world of
academia to draft the Uniform Premarital and Marital Agreements Act which was
promulgated in 1983.54
Therefore, as much as states have their independent legislation on the matter of pre-nuptial
agreement, they must align their legislation to that of the Uniform Premarital and Marital
Agreements.
2.6 Conclusion
The objective of this chapter is to analyse the laws on pre-nuptial agreements in different
jurisdictions. We have seen that Kenya has made a step in recognising pre-marital agreement
as outlined in the Matrimonial Property Act. However, the law is still under developed as it
does not clearly stipulate what constitutes such an agreement. It does not state in what form
that agreement should be in or what can be contained in it. Though the law has stated that
parties can enter into an agreement determining their property rights within their marriage.P
We have seen that South Africa has the community property regime which parties
automatically subscribe to upon attainment of marriage. This regime outlines that parties hold
their property separately even within their marriage. However, this regime has been
challenged as being repressive since women who are dependent on their husbands seem to be
facing the huge blow. It limits the wife from exerting rights on their husband's property upon
dissolution of the marriage. Therefore, with the coming of ante-nuptial agreements parties are
52 Posner v Posner, 233 So 2d 381 (F1a 1970).
53 Prefatory notes of the Uniform Premarital and Marital Agreements Act of2012 page 1.
54 Prefatory Note of the Uniform Premarital and Marital Agreements Act as discussed at its annual conference
meeting in its one-hundred and twenty-first year (12 l") in Nashville, Tennessee on 13th to 19th July, 2012.
55 Section 6, Matrimonial Properly Act, 2013 .
Page I 21
able to determine their property rights and set their own terms and conditions from the onset.
This development of their law is important and Kenya can bOlTOW a leaf and implement the
same in their laws.
The United States of America and Australia have similar progression of their law. Initially
both these States were reluctant to enforce prenuptial agreements on the thought that they
encourage divorce among couples. However, there was a shift in this opinion where courts
allowed the enforcement of this agreement which further led to enactment of laws on the
same. They saw that this agreement was helpful to couples as they were able to set their own
terms and conditions as to the property ownership within the marriage and this served as a
great help in reducing the impact of conflict when the marriage was about to be dissolved-"
Therefore in response to the hypothesis, other jurisdictions such as South Africa, Australia
and South America have invested their time to legislate laws on prenuptial agreements which
fall in the docket of family law. Kenya has no excuse on this matter. Kenya has made the first
step in recognising prenuptial agreements however they should go ahead and legislate further
for instance on which clauses should constitute such an agreement and outline some terms
and conditions that parties entering into such an agreement should adhere to.57
The subsequent chapter shall analyse how courts have interpreted prenuptial agreements. It
shall discuss both the procedural and substantive elements that the court considers when
attempting to determine the validity and enforceability of a prenuptial agreement.
56 B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLaw, Policy and the Family, (2002) 16 (1): 127.
57 Refer to Chapter one.
Page I 22
CHAPTER THREE
CASE LAW ANALYSIS OF PRENUPTIAL AGREEMENT
3.1 Introduction
In Chapter two we have discussed the laws that govern prenuptial agreements in Kenya. \Ve
have also looked at laws in other jurisdictions such as Australia and the United States of
America. These two States were chose due to their well-developed jurisprudence on the
subject matter of prenuptial agreements. 'In addition to this the laws of South Africa were
also discussed as this is a country close to Kenya in terms of territory, it also shares almost
similar history, beliefs and culture and it has developing jurisprudence on the subject matter
and Kenya can greatly benefit from adopting some of the laws that the above countries have
legislated.
Chapter three seeks to analyse both the substantive and procedural requirements that a
prenuptial agreement must satisfy in order for it to be rendered enforceable by the court of
law. Being a type of contract, it must satisfy certain thresholds such as voluntariness of
parties in entering into the contract.?
As the bride and groom stand at the altar , looking into each other's eyes they promise each
other to "love and to cherish in good and bad times, till death separates us". Some go a step
ahead to promise much more than is within the vows . So what happens that day when one of
the parties willing fully fails to honour their promise ... the offended party obviously seeks to
enforce the promise and at this point the law must take its course. However, are all promises
enforceable in a court of law and if not which ones are enforceable?
Therefore this Chapter endeavours to analyse the form that prenuptial agreements should take,
the clauses that are allowed to be contained in the agreement and how courts determine the
enforceability of these agreements.
This chapter also attempts to satisfy the objective stated in chapter one of trying to identify
how the courts have interpreted prenuptial agreements'. What the court looks at in order for it
I Judith T. Younger, "Lover 's Contracts in the Courts: Forsaking the Minimum Decencies", 13 Wtn. & MGlY J.
Women & L. 349 (2007)
2 Judith T. Younger, " Lover's Contracts in the Courts : Forsaking the Minimum Decencies", 13 Wm. & MGlY J.
Women & L. 349 (2007)
3 Refer to Chapter one .
Page I 23
to render the agreement as valid. Though the court decisions discussed below are from
different jurisdictions such as Australia and the United States of America, they seem to agree
on almost all the issues that are allowed to be contained in the agreement. For instance, they
seem to agree that the custody of the children within the marriage cannot be determined
within the prenuptial agreement."
The cases discussed below can serve as a great source of jurisprudence for Kenya which is
still in the process of developing laws to guide and regulate parties in the manner they should
draft their prenuptial agreements.
A pre-nuptial agreement is treated with the same threshold as normal contracts. Where for a
contract to be valid there must be entered voluntarily, capacity- of the parties, must be
supported by consideration, must be legal-and be consistent with public policy? Therefore
the court looks into this issues to determine whether the pre-nuptial agreement is enforceable.
In pre-nuptial agreements the court breaks the veil and attempts to flash back on the
surrounding circumstances (both internal and external) of the parties when entering the
agreement and the content of the said agreement. Therefore the court tests for both procedural
fairness and substantive fairness of the agreement.
Procedural fairness demands that the parties enter into the agreement voluntarily and that
each discloses to the other spouse the value of their assets. This is very important as the court
deems a marriage relationship as a fiduciary" one, the court hopes that the parties should
always act in good faith. 9Procedural fairness test is procured by inquiring into the conduct of
the parties, their status and mainly was it voluntary. It also delves deeper into whether the
parties had prior experience or advice from legal counsel, disclosures of party's assets and
income, and the time of signing of the agreement in relation to the wedding.
On the matter of substantive fairness, the court shall assess the couples' objectives, financial
capability, physical and emotional status, prior obligations or commitments borne by each
4 J. A. Miller, "Preparing for a Broken Home", New York Times, The New York Company, 18 June, 2012.
5 Meaning it must be made by competent parties .
6 Meaning that it ought to comply with any applicable statute.
7 There are certain provisions that the court deems to be contrary to public policy such as clauses that waiver
child support, custody or rights to visit the children.
8 Meaning that the spouses are held to standards of the highest good faith and fair dealing.
9 G. F. Brod, ' Premarital Agreements and Gender Justice' , 6 Yale 1. L. & Feminism 229 (1994).
Page I 24
party, their contribution to the marriage and their financial needs. "Substantive fairness test
looks at what is the impact of enforcing the said agreement against the aggrieved party II .
The courts have informed the requirements that a pre-nuptial agreement must satisfy for it to
be valid and enforceable. Therefore, for a pre-nuptial agreement to be enforceable the
following conditions must be attained:
1. The parties must have entered the agreement voluntarily. Any form of duress or
coercion affects the will of the party and hence such an agreement cannot be held to
be valid.'?
II. The agreement must be 111 writing. Oral prenuptial agreements are generally
unenforceable.
III. The agreement should not have been unconscionable at the time of execution. This
means that the agreement should not contain strange provisions such as issues relating
to the children of the marriage especially on issues concerning custody. 13
IV. The agreement must not be unconscionable at the time of enforcement. 14
V. The agreement should contain fair and reasonable disclosure the character and value
of property , financial obligations and income of both parties before the execution. 15
VI. The parties to the agreement must have reasonable time to consult with an
independent lawyer on the matters of the agreement before execution."
With the guidance of the above conditions, that a pre-nuptial agreement must adhere to, we
shall have a look at the various cases that the courts have determined and assess where the
courts have been consistent in deciding the matters in accordance with the conditions
stipulated above.
10 P. Gainsley & S. Rhode, 'The Role of Substantive Fairness in Premarital Agreements'
I I Judith T. Younger, "Lover's Contracts in the Courts : Forsaking the Minimum Decencies", J3 Wm. & Mary 1.
Women & L. 349 (200 7), http://scholarship.law.wm.edu/wmjowl/voI13/iss2 /2.
12 Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum Decencies", J3 Wm. & Mary J.
Women & L. 349 (200 7)
13 Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum Decencies", J3 Wm. & Mary 1.
Women & L. 349 (2007)
14 Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum Decencies", J3 Wm. & Mary 1.
Women & L. 349 (2007)
15 Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum Decencies", J3 Wm. & Mary 1.
Women & L. 349 (200 7)
16 Judith T. Younger, " Lover 's Contracts in the Courts: Forsaking the Minimum Decencies", J3 Will. & Mary J.
Women & L. 349 (200 7) .
Page I 25
3.2 The essence of Voluntariness
As discussed earlier the element of voluntariness is an essential factor when determining
whether a pre-nuptial agreement is enforceable. Section 9 (1) of The Uniform Premarital and
Marital Agreements Act states that premarital or marital agreement is unenforceable if a party
against whom enforcement is sought proves: the party's consent to the agreement was
involuntary or as a result of duress. I?
In re Marriage of Bonds I8, in California State, a foreign, unrepresented wife signed a pre-
nuptial agreement on ·the eve of her wedding to a famous baseball player, Barry Bonds. In the
pre-nuptial agreement she waived all her rights to community property. The couple later
divorced after seven years of marriage which had produced two children. In court the wife
challenged the voluntariness of the agreement. The court under the California Family Code
1615 (2000) 19could not enforce an agreement that was not entered into voluntarily however
the wife was not able to discharge the burden and hence the agreement was said to be valid-",
California legislators disapproved this decision and amended the said law by stating the
criteria of identifying voluntariness as: 1) each party must be represented by independent
counsel at the execution of the prenuptial agreement or 2) if a party wishes to waive their
right to representation then such waiver must be executed" .
With this amendment there was a departure from the earlier decision in Bonds case. In Re
Marriage 0[Shirilla22, in Montana State, Steve fell in love with Natalie and went to Russia
where he brought her and her son back with him in the United States. He presented her with a
pre-nuptial agreement whose content stated that they would each maintain their individual
property and limited her rights to maintenance upon divorce". However Natalie could not
understand English but still signed the agreement. Steve filed a divorce after five months of
marriage and Natalie successfully challenged the voluntariness of the agreement. The courts
stated that Natalie had involuntarily signed the agreement as she lacked the capacity due to
her limited knowledge of English and therefore the agreement was unenforceable.i"
17 Section 9 (a) (I ), Uniform Premarital and Marital Agreements Act, 2013 , America Federal.
18 /n Re Marriage ofBonds, 5 P.3d 815 (California 2000).
19 California Family Code § 1615 (2000).
20/n Re Marriage ofBonds, 5 P.3d 815 (California 2000).
21 Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum Decencies", page 358.
22 /n re Marriage ofShirilla, 89 P.3d 1, 3-4 (Mont. 2004).
23 [fthe marriage ended before Natalie got a permanent visa then Steve would meet transportation expense back
to Russia and maintenance of$5 ,000 however if it ended after 2 years the maintenance would increase to $7,500.
2~ /n re Marriage ofShirilla, 89 P.3d l , 3-4 (Mont. 2004) .
Page I 26
The Trial court in New Hampshire was also faced with the question of determining
voluntariness in the case In re Yannalfo 25 Gary and Janice bought a house some days before
their marriage , where Gary contributed $70,000 and Janice $5,000. A day before their
wedding, Garry's lawyer presented Janice with prenuptial agreement and stated that if she
would not sign then Gary would not marry her. The agreement stated that upon divorce the
house will be sold and Gary will take the first $70,000 worth of equity, therefore without a
choice she signed. 26
After twelve years of marriage and three children the couple divorced and Janice challenged
the applicability of the agreement on the ground of duress and changed circumstances since
execution for the reason; Gary had been fired from his job due to drug abuse and therefore
she become the breadwinner of the family. Also he had become abusive, which had caused
Janice to obtain restraining order against him. 27The court held that the circumstances
surrounding the signing of the agreement amounted to 'subtle form of duress and the
circumstances had so changed since the execution that to enforce it would be unfair."
The Hampshire court went ahead to state that for a premarital agreement to be valid then it
must attain the three standards of fairness:
I. Should not be as a result of fraud, duress, mistake, misrepresentation or non-
disclosure.
11. The agreement should not be unconscionable.
111. Facts or circumstances have not changed since execution of the agreement."
3.3 Disclosure of material facts
Pre-nuptial agreements are like any other contract and hence must also follow the principal of
disclosure. Parties must disclose all material facts that are relevant to the contract. One of the
material facts in a pre-nuptial agreement is disclosure of assets and their correct value. This
matter has been a subject of many litigations as spouses have been seen to fail to disclose
their assets so as to prevent the other spouse from laying claim on the property. The courts
25 In re Yannalfo 794 A.2d 795, 796 (N.H. 2002) .
26 In re Yannalfo 794 A.2d 795, 796 (N.H. 2002).
27 In re Yannalfo 794 A.2d 795, 796 (N.H. 2002).
28 In re Yannalfo 794 A.2d 795, 796 (N.H. 2002) .
29 In the case In re Yannalfo 794 A.2d 795, 796 (N.H. 2002). Also the same pronouncements were made by
Georgia Supreme Court in the case ofAlexander v Alexander, 6 I0 S.E.2d 48, 49 (Ga. 2005) .
Page I 27
seem to opine that disclosure of material facts is an essential element to a contract and failure
to do so may render the agreement unenforceable. 30
In the State of Georgia, the Supreme Court was faced with a similar situation in the case of
Alexander v Alexander" where the couple was planning to get married. Four days before
their wedding , Jerome presented his soon to be wife Kimberly with a pre-nuptial agreement.
He told Kimberly that if she failed to execute the agreement then he would not go through
with the wedding and his parents would not allow them to marry without her signing .
Therefore, in fear that Jerome would fail to marry her if she refused, she went ahead to sign
the document even without legal consultation. Unknowingly to Kimberly, the agreement
stipulated that parties had disclosed all material facts regarding to property and were attached
as Exhibit A and Exhibit B but this in actual sense had been omitted. After six years of
marriage the couple went to court to seek for divorce.F Kimberly challenged the validity of
the agreement on several grounds such as involuntariness however the most important being
for failure to disclose his assets .
The Court held the pre-nuptial agreement was unenforceable as Jerome had failed to disclose
material facts of his property such as the forty thousand dollar investment account that he had.
Hence, without knowledge of such a material fact Kimberly could not intelligently enter into
the agreement. 33
This matter of failure to disclose material facts in a pre-nuptial agreement has led to their
unenforceability by the court. The trial court of Georgia was also faced with the same matter
in question in the case of Corbett v Corbett'" where Charles presented Eileen with a pre-
nuptial agreement where among all things it purported to have made full disclosure of the
assets of each spouse. After fifteen years of marriage Eileen sought dissolution of the
marriage and asked the court to declare the agreement unenforceable. The court held that the
husband 's failure to disclose his income invalidated the agreement hence the comi held the
premarital agreement to be unenforceable. 35
30 Judith T. Younger, "Lover 's Contracts in the Courts: Forsaking the Minimum Decencies", page 375.
31Alexander v Alexander, 610 S.E.2d 48, 49 (Ga. 2005) .
32 Alexander v Alexander, 610 S.E.2d 48, 49 (Ga. 2005) .
33 Alexander v Alexander, 610 S.E.2d 48, 49 (Ga. 2005).
34 628 S.E. 2d 585, (Ga 2006) .
35 Corbett v Corbett, 628 S.E. 2d 586, (Ga. 2006) .
Page I 28
3.4 Unconscionable or Unfair Terms
There have been instances of unfair terms in the pre-nuptial agreements but this is prevalent
in situations where one party is more advantageous than the other. Meaning one of the
spouses is in possession of more assets than the other and hence due to the power of money
he or she tends to call the shots. This is detrimental to the other party as they have low
bargaining power and readily take the little that is given to them.
The Supreme Court of Maine was faced with such a matter in the case of Hoag v Dick"
where Richard presented Terry with a pre-nuptial agreement that did not only stipulate their
assets and division of the same upon marriage but it had a clause stating that if she instituted
a divorce proceeding then she would not have a share in the husbands property; she would
only receive six thousand dollars and she would be responsible for her own and her
husband 's legal fees.
The court held that the substance of the agreement was beyond unfair and unreasonable and
hence the pre-nuptial agreement was declared invalid." Therefore, Terry was granted one-
hundred and fifty thousand-six hundred dollars as her share of marital property, spousal
support of six hundred dollars a month for six years and her attorneys fee of seventeen
thousand-five hundred dollars.l"
A court cannot validate an illegality, therefore any clause within an agreement that inhibits a
party from seeking assistance from the court is invalid and even repudiates the whole
agreement. Unfair clauses are particularly targeted towards the less economically privileged
party; one whose bargaining power is minimal. This is very unfair to such spouses and
coincidentally this parties happen to be women. Women are often financially or emotionally
disadvantaged 39in the process therefore, once presented with these agreements, they are left
with no choice but to agree with the terms as they want to man)' the man, they fear losing a
great man, they fear that if they do not sign then this may be interpreted that they do not trust
their soon to be husbands.
36 799 A.2d 391 (Me 2002).
37 Hoag V Dick, 799 A.2d 391, (Me. 2002).
38 Hoag V Dick, 799 A.2d 391, (Me. 2002) .
39 Allison A. Marston, ' Planning for Love: The Politics of Prenuptial Agreements' 4 Stanford Law Review,
(/997), 887-917.
Page I 29
3.5 Consultation with an Independent attorney
For the pre-nuptial agreement to be held valid then parties must have received relevant
counsel from an independent lawyer concerning the agreement. The party must be given
reasonable time to consult on each and every clause before execution of the document. As
you have already guessed , most spouses sign the agreement barely a week to the wedding and
in others the agreement is presented to the other party on the day of the wedding for their
execution. The court has held this to amount to duress as parties are not given time to assess
the document, have no time to suggest amendments or even given a chance to reject it.
Therefore, you will find in cases where the COUlt has ruled that the agreement lacked the
element of voluntariness, then also the requirement of having a review from an independent
counsel has also not been satisfied. This is the case in Re marriage of Bonds'" where a
foreign lady was presented with a pre-nuptial agreement on the eve of her wedding and had
no choice but to sign the agreement even without reasonable consultation with an
independent counsel. The court held the agreement to be unenforceable due to lack of
voluntariness and lack of counsel from an independent lawyer who would have given her
great legal advice on matters concerning the agreement."
Therefore, parties must work to ensure that their prenuptial agreements adhere to the above
requirements, failure to which the agreement will be rendered as invalid and unenforceable.
3.6 Conclusion
This chapter has discussed both procedural and substantive elements that a prenuptial
agreement must satisfy in order for it to .be valid and enforceable. It is not good enough for
parties to simply enter into an agreement, they must adhere to laid down regulations in
regards to the form of the agreement.
This chapter has outlined that for a pre-nuptial agreement to be valid parties must enter into it
voluntarily. Any form of duress or coercion from the other party will render the agreement to
be void. Therefore, voluntariness is a substantive element that must be satisfied for a
prenuptial agreement to be valid."
40 In Re Marriage ofBonds, 5 P.3d 815 (California 2000) .
41 In Re Marriage ofBonds, 5 P.3d 815 (California 2000) .
42 Section 9 (a) (1), Uniform Premarital and Marital Agreements Act, 2013 , America Federal
Page I 30
This chapter has also outlined that the court will not uphold prenuptial agreements whose
terms or content is unconscionable. This refers to the substance of the agreement. The court
has attempted to declare the terms that can be in the prenuptial agreement such as clauses in
regards to property rights in a marriage'". At the same time they have also outlined some
clauses that are unfair or should not be dictated by the prenuptial agreement; for instance
clauses that pertain to the custody of children are really frowned upon by the court. "
This chapter has also emphasized the importance of obtaining legal advice from an
independent counsel." A contract is a legal matter, a party without the necessary expertise
ought to seek the service of an expert in the interpretation of contracts, this being a lawyer. In
addition the lawyer ought to be an independent lawyer, one who has not participated in
drafting of the contract and also one who has no direct or indirect conflict of interest in the
matter. 46The importance of this is that both parties are able to execute the agreement in full
knowledge of what it entails and also they are able to be advised on which clause ought to be
omitted and those to be included.
This chapter has demonstrated how courts interpret the law in regards to pre-nuptial contracts
and how courts have increased the growth of jurisprudence on this subject matter. The
subsequent chapter, chapter four, shall endeavour to determine the merits of prenuptial
agreement and how they can benefit parties that enter into it.
43 Haag V Dick. 799 A.2d 391, (Me. 2002).
44 Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum Decencies", 13 Wm. & Mary J.
Women & L. 349 (200 7)
45 Meaning any other lawyer other than the one who drafted the agreement or one without any conflict of
interest.
461n re Marriage of Shirilla, 89 P.3d 1,3-4 (Mont. 2004).
Page I 31
CHAPTER FOUR
WHAT IS THE RELEVANCE OF PRENUPTIAL AGREEMENTS
4.1 Introduction
The previous chapters have discussed the substantive laws that govern prenuptial agreements.
We have analysed the laws from Kenya, South Africa, Australia and even United States of
America. These laws have formed the basis upon which we can confidently say that
prenuptial agreements have been recognised by the States above and hence they are legal.
Then we had a look into how the courts in the aforementioned jurisdictions have interpreted
the law governing prenuptial agreements, what the agreement must constitute for it to be
valid and enforceable. We have also seen that courts have developed the jurisprudence on
prenuptial agreements both on substantive and procedural requirements.
Therefore, in this chapter we shall look into the relevance of parties having a prenuptial
agreement. As already stated these agreements which determine property allocation within
the marriage can be drafted before the marriage, within the marriage and even upon
dissolution of a marriage. I
In the Republic of Australia, the Federal Attorney General made a speech in the House of
Representatives during tl~e Second Reading of the Bill amending the Family Law Act of 1975
where he stated the benefits of binding financial agreements are.?
I. Parties have greater control over their property. They are able to quarantine assets
acquired before marriage, during marriage or upon dissolution of a marriage. This is
very important especially for parties who were planning to enter a subsequent
marriage as well as those wealthy people in society who needed to protect their
businesses.
II. Parties are proactive and are able to take initiatives to enter into agreements to order
their own financial affairs.
III. Reduced conflict upon the breakdown of a marriage. Since the parties had already put
their finances in order there is reduced emotional and financial struggle.
-----------
I B. Fehlberg and B. Smith "Binding Pre-nuptial Agreements in Australia: The First Year", International
Journal ofLall', Policy and the Family, (2002) 16 (1): 127.
2 House of Representatives Hansard 7705, Federal Attorney General's Second Reading of the Family Law
Amendment Bill, (1999).
Page I 32
Pre-nuptial Agreements have come through a long journey, from the paternalistic view of
being tools or avenues that encouraged or were a precursor to divorce , by the developed
countries such as Australia. They have now become an opportunity for bargain. So long as
both parties have equal bargaining power, then they are able to negotiate their finances and
property ownership. This is very important as patties are able to iron out issues that may arise
out of finances and are able to get married with little hedge. An author by the name Gitta
Morris stated that
"Rather than demonstrating a lack of faith in the motives of the other party, pre-
nuptial agreements are actually an act of good faith, it demonstrates that the absence
of secrets between the parties . It is an act of eliminating as much as possible any
likely future impediment to a marriage that may arise from uncertainties as to their
respective financial obligations to each other.'?
The merits of entering into a pre-nuptial agreements are as follows:
Elimination of financial disputes"; before spouses can say "I do", they have an opportunity
to draft an agreement stating how they would like to allocate or share out their present and
future property in the even a divorce occurs. Therefore , in the event that the divorce occurs,
then this agreement will eliminate conflict over assets and finances. This agreement gives the
couple a form of assurance that their property will be disposed according to their intention.
Therefore, if parties can take heed and draft pre-nuptial agreement, they are avoiding loads of
conflict that accrue upon dissolution of a marriage and according to the proponents of pre-
nuptial agreement , they may even reduce their chances of even a divorce . 5
Protection of parties with substantial wealth": there are situation where one of the spouse
has a well-established family business and seeks to protect this business. There is often
pressure from the family members engaged in the business to keep ownership of the business
within bloodlines. Therefore, a prenuptial agreement acts as the perfect tool to ensure that
3 G. Morris , Taking a Legal Approach to Marriage, New York Times , (February 10, 1991).
4 M.E. Sudi, "Prenuptial Agreements: Blessing or Curse ."
htlp:/!sa lclaw.co.ke!pren uptiala!!reernenlsbles sim!.orcurse! (accessed on I June 2016).
5 A. Sullivan , "Demand for Prenuptial Agreement is on the Rise: Kiss me and Sign here, Darling."
(htlp:!!www.ihl.co l1l !articles!1997!02!08!rnpact.t. phg. (Accessed on 29 December, 2016).
6 M.E. Sudi, "Prenuptial Agreements: Blessing or Curse ."
http://salclaw.co.ke/prenuptiala!!rccrnentsb lessingorcurse! (accessed on I June 2016) .
Page I 33
one's personal life (marriage) does not interfere with activities of the family business. I guess
the saying that "Do not mix business with pleasure" truly applies here.
This matter was a subject of a case in United Kingdom, Katrin Radmacher v Nicholas
Granatino? where Katrin was a German heiress and run a multi-billion dollar family business.
So upon marriage, her father asked her to draft a pre-nuptial agreement stating that her
husband would not have a share in their family business and if she failed to do so he would
disinherit her. Therefore, she obeyed and her husband Granatino executed the document.
During the divorce proceeding Granatino asked the court to declare the agreement as invalid,
however the court held that no conditions had been violated and hence the agreement was
valid and enforceable."
Therefore, pre-nuptial agreements can be used to protect family assets or make them immune
from the claims of unintended heir. 9
Party Initiatives!"; when parties fail to enter into a pre-nuptial agreement then they leave the
fate of their property on the court, upon dissolution of their marriage. They actually invite the
court to order their private life. However when parties enter into a pre-nuptial agreement then
they are taking a great initiative in ordering their lives. They are able to solve their own
financial matters way before they get married.
Parties are able to take initiative in structuring fair and reasonable terms that are favourable
for their situation and ordering the life and their present property and that which they shall
acquire in the future. II
Compliment the will; many a time parties have died without drafting a will. A will is a
document where a party states his last intentions if he or she was to die. In cases where a
7 Granatino v Granatino, [2009] All ER (D) 31 (Jul).
8 Granatino v Granat ino, [2009] All ER (D) 31 (Jul).
9 B. Greenstein, " Prenuptial Agreements: What they can and cannot
accomp1ish".htlp:/!www.ll vsscpa.org!cpajournal!old!13606725.hll11-4 1k (accessed on 23 December 2016).
10 M.E. Sudi, "Prenuptial Agreements: Blessing or Curse."
http://salclav,,.co.ke!prellup'liala!!.reell1CnISblessingorcurse! (accessed on 1 June 2016).
II J. Morley, "Enforceable Pre-nuptial Agreement; The World View",
htlp:i!www.inlernalionaldivorce.colll!englandprenuplial (accessed on 23 December, 2016).
Page I 34
party has died without drafting a will , then a pre-nuptial agreement may be used to shed light
for the court of the intention of the deceased.F
There is no known case discussing this matter , however in the process of my research it is
clear that a pre-nuptial agreement is a contract, therefore, so long as it has satisfied the
necessary conditions and criteria of a contract, then it is admissible in a court of law. The
court in its wisdom ought to use a pre-nuptial agreement to shed a light into the mind and
intention of the deceased, when attempting to make a decision on property allocation of the
deceased.
Protection against creditors'P; in the even that one of the parties to the marnage had
incurred debts before the marriage, the pre-nuptial agreement would act as a shield to the
other party, The agreement would protect the assets of the debt free party from claim by the
debtors. Therefore, even in the event of insolvency, creditors cannot lay claim on the assets of
the debt free party. I"
Protection of parties intending to re-marry'>; upon dissolution of a marriage, children and
former wife always feel threatened or unsure of whether their property is intact or will it be
granted to the new family. In addition to this, some marriages are polygamous whereby the
man has two wives and each wife has children. There are moments of conflict as to the
ownership of property and ratio of property sharing.
In such a case a prenuptial agreement is an excellent tool to ensure that property is distributed
fairly. 16
12 B. Greenstein, " Prenuptial Agreements: What they can and cannot
accomplish".htlp:i!www.llvsscpa.or!!cpajolirnal!old! 1360671 5.hlll1-41k (accessed on 23 December 2016).
13 Annalise J, "Is there a need for prenuptial agreements in Zambia?" Unpublished LLB dissertation, University
of Zambia, 6 February, 2008.
14 B. Greenstein, " Prenuptial Agreements: What they can and cannot
accomplish".htlp:/!w\Vw.llvsscpa.or!!cpajolirnal!old! 13606715.h[II1-4 1k (accessed on 23 December 20 I6).
15 M.E. Sudi, "Prenuptial Agreements: Blessing or Curse."
htlp:iisalclaw.co.ke!prclllIRtialagreCII1Cn lsblcssingorclirse! (accessed on I June 2016).
16 B. Greenstein, "Prenuptial Agreements: What they can and cannot
accomplish".hllp:h vww.Il vssc pa . or~cpa j ollrna l!old! I3606725.hlm-4 Ik (accessed on 23 December 2016).
Page I 35
Introduction of certainty!"; every relationship requires some form of certainty where parties
are in a position to know their fate and are able to predict what may happen upon the
occurrence of events. Lord Diplock stated that legal certainty requires that the rules which
bind a citizen should be ascertainable by him.IS Therefore, prenuptial agreements that re well
drafted and reasonable give parties such predictability or certainty. Rather than leaving the
court with the discretionary mandate of determining property allocation, parties can make
their own term in regards the same.
Makes divorce less costly!"; the process of divorce is said to be economically exhausting
and time consuming. A lot of money and time is wasted in court trying to determine property
allocation. However, if the parties had ·a pre-marital agreement or even a post-marital
agreement where they have already outlined their terms and conditions on property allocation,
then the process of divorce will be less costly and less time consuming"
4.2 Conclusion
The purpose of this chapter is to outline and analyse the merits of having a prenuptial
agreement. We have seen from the previous chapter that states were reluctant to enforce
prenuptial agreements as they thought they encouraged divorce; they felt that this agreement
was like an exit strategy where parties were planning what would be the fate of their property
upon dissolution of a marriage. However the attitude of states has changed as it has been
outlined in chapter two and three where states now consider prenuptial agreements as valid
and enforceable.
This chapter has succeeded in achieving the objective as outlined in chapter one which is to
discuss the purpose and importance of pre-nuptial agreements and what role does it play in
marriages and how have they fostered harmony in marriages. We have seen the benefits that
accrue to parties once they contract a prenuptial agreement for instance parties are able to
allocate proprietary rights in regards to the property acquired within the marriage. We have
17 M.E. Sudi, " Prenuptial Agreements: Blessing or Curse."
htlp:!isa lclaw.co.keiprelluplia la!!reementsblessimwrcursei (accessed on I June 2016).
18 Fothergill v Monarch Airlines Ltd, [1981] AC 251.
19 M.E. Sudi , "Prenuptial Agreements: Blessing or Curse."
b..1!'p : !isa lc l a'vv.co . h:eiprell llp t i a la !! I\~ementsb l ess i n !!o rcurse! (accessed on I June 2016).
20 B. Greenstein, " Prenuptial Agreements: What they can and cannot
accomplish''.b..1!p :iiw ww.l1 vsscpa.or l!!cpa jolirnalio ldi I3606n5.htm-.J Ik (accessed on 23 December 20 16).
Page I 36
also seen that there is a close connection between a prenuptial agreement and harmony within
a marriage. When parties create a prenuptial agreement then they are able to outline all their
terms and conditions especially in regards to property hence if the parties ever decide to
dissolve their marriage then there shall be less conflict as they had already determined their
rights in the marriage
Therefore, prenuptial agreements are very beneficial to parties who are planning to enter into
a marriage as they are able to set out the terms and conditions that shall guide them in their
marriage as outlined in chapter three and hence there is a high likelihood that such a marriage
will last longer unlike other marriages without a prenuptial agreement. Hence couples in
Kenya ought to be encouraged to subscribe to drafting a prenuptial agreement as its benefits
may ensure a better and long lasting marriage.
In the next chapter we shall attempt to conclude the subject matter of this research; which is
prenuptial agreements. We shall examine whether the legal question has been successfully
addressed, whether the hypothesis has successfully been answered and whether all the
objectives of this research has been successfully addressed.
Page I 37
CHAPTER FIVE
CONCLUSION
5.1 Introduction
In chapter two, we have established that pre-nuptial agreements were frowned upon by
society, especially by the clergy or religious groups and by the courts. They felt that it was
like planning for a divorce yet a marriage was a binding relationship built on love and trust
and therefore needed to be protected from breaking up. They could not understand the
rationale behind it. They wondered how parties could plan for divorce and yet enter into the
marriage; it beat the whole point of getting married. However , the States discussed such as
Australia and United States of America changed their negative perception and began to
recognise prenuptial agreements. In this same chapter we also determined that the Kenya
laws in regards to the subject matter are quite undeveloped. Therefore, this posed as a
positive challenge to Kenya that they need to develop their laws on the subject matter.
In chapter three we analysed how the courts have interpreted the laws on prenuptial
agreements. We have seen that for the courts to render the agreement valid and enforceable;
parties must enter the agreement voluntarily , the agreement must not consist of
unconscionable terms, parties must obtain independent counsel within a reasonable time
before executing the agreement, must be in writing and it must make full disclosure of all
material things. We have also analysed cases from other jurisdiction such as South Africa,
Australia and the United States of America who have undergone the process of validating
prenuptial agreements. We have looked at how their courts have revolutionised in their
interpretation of prenuptial agreements and how such jurisprudence is beneficial to Kenya's
developing laws.
In chapter four, we discussed the benefits of having a prenuptial agreement. This is an
attempt to convince the reader that prenuptial agreement are indeed beneficial as parties have
a great opportunity to determine their property rights in regards to the property they already
have and those they shall acquire within the marriage. One of the benefits discussed, and that
is in line with the title of this paper is: prenuptial agreements can be a solution to the conflict
that is prevalent once a marriage is about to be dissolved.
Page I 38
Page I 39
5.2 Restating the Legal Problem
The legal problem that invoked this study is whether there is a need to recognise and enforce
prenuptial agreements in Kenya. Kenya, being the centre of this paper has very limited
legislation of pre-nuptial agreement. The Matrimonial Property Act only provides that parties
can enter into an agreement, determining their proprietary rights, before the marriage. This
can be termed as the establishment clause as it establishes that pre-nuptial agreements are
valid. However, the legislation is really at the birth stage when compared with the laws of
Australia or the United States of America which were initially chosen for discussion in
Chapter one as they have well developed jurisprudence on the subject matter of prenuptial
agreements and Kenya would greatly benefit if they would use this jurisprudence to guide the
formulation of their developing laws .
The Kenyan courts have also not been exposed to matters of prenuptial agreements as the
Kenyan society has not adopted this kind of agreements. Therefore, obtaining substantial
precedent is a great challenge. People entering into a marriage have not seen the need to enter
into a pre-nuptial agreement hence the court being an institution that has to be moved to act ,
then has no jurisprudence on the subject matter.
The people of Kenya ought to be encouraged to enter this kind of agreements as they are able
to lay their own terms and conditions in regards to their property rights. These agreements are
also very important as they reduce the intensity of conflict that is experienced once a
marriage has hit the rocks and sails in the waves of divorce. The advantageous of a pre-
nuptial agreement have already been discussed in chapter four and its importance can only be
overemphasized.
Therefore, there is great need to recognise and enforce prenuptial agreement especially in
Kenya. These agreements as already stated can be entered into before marriage, during the
marriage or even upon dissolution of the marriage. These agreements are essential for couples
as they are able to determine property rights at the onset of their marriage and in some
instances this agreement may be used by a probate court to shed light on the intention of the
deceased in regards to its property.
Therefore, in response to the legal problem stated above, there is great need for parties to
enter into prenuptial agreements as they are indeed a great tool to minimise conflicts between
parties especially once a marriage turns sour.
Page I 40
5.3 Restating the Specific Objectives
The first objective as outlined in Chapter one is to discuss what laws have been legislated to
regulate pre-nuptial agreements . These laws have been successfully discussed in Chapter two
where Kenyan laws on the subject matter have been contrasted to those in Australia and
United States of America who have well developed jurisprudence in terms of laws on the
subject matter. In this Chapter we also contrasted Kenya to South Africa which is also an
African country sharing almost similar beliefs and culture and we have seen that they too
have a good developing jurisprudence on the subject matter of prenuptial agreements and
hence Kenya may want to borrow a leaf from them.
The second objective as stated in Chapter one is to discuss and analyse the relevant case law
in regards to prenuptial agreement in addition to also assess what can constitute a prenuptial
agreement. This has been successfully performed in Chapter Three. Having looked at the
substantive laws on prenuptial agreements from South Africa , Australia and United States of
America we also had a look at their case law. This is in attempt to identify how the courts
interpret the said law on prenuptial agreements. The courts seem to advocate for prenuptial
agreements and hence deem them to be enforceable and valid. Therefore, Kenya can borrow
from the jurisprudence of the aforementioned jurisdiction especially in determining the
enforceability of prenuptial agreements as this will immensely guide Kenya in developing its
own jurisprudence on the subject matter.
The third objective as outlined in Chapter one was to assess and ascertain the advantages or
the benefits that accrue to parties by virtue of executing a prenuptial agreement. This
objective has been successfully discussed in Chapter four where we have seen that it is very
instrumental for parties to take initiative in ascertaining their property rights within the
context of marriage.
Therefore the hypothesis has successfully been answered through-out this paper, that indeed
there is a need for parties to execute prenuptial agreements in Kenya as they are indeed a
hope to an end of conflict before marriage, within marriage and upon dissolution of a
marriage on matters regarding proprietary rights.
Page 141
BIBLIOGRAPHY
I. JOURNAL ARTICLES
1. Allison A. Marston, 'Planning for Love: The Politics of Prenuptial Agreements' 4
Stanford Law Review, (1997)
11. Belinda Fehlberg and Bruce Smyth, 'Binding Pre-nuptial Agreements in Australia -
The First Year' International Journal ofLaw, Policy and the Family I6, (2002), 127-
140.
lll. Gail F. Brod, ' Premarital Agreements and Gender Justice' Yale Journal of Law and
Feminism (1993).
IV. Mweresa Eugene Sudi , ' Pre-nuptial Agreements: Blessing or Curse?' (2015).
v. Jonathan E. Fields, 'Forbidden Provisions in Pre-nuptial Agreements: Legal and
Practical Considerations for the Matrimonial Lawyer' (2008).
VI. Ivor Weintraub, 'Benchmarks: Tying the Note around Pre-nuptials' Law Society
Gazette (2003).
VII. Nancy Baraza, "Family Law Reforms in Kenya: An Overview", Presentation at
Heinrich Boll Foundation's Gender Forum in Nairobi, 30th April, 2009 .
V11I. Judith T. Younger, "Lover's Contracts in the Courts: Forsaking the Minimum
Decencies", 13 Wm. & Mary J. Women & L. 349 (2007)
IX. D. Cronje & 1. Heaton, South African Family Law, (1999), page 107
x. G. Morris, Taking a Legal Approach to Marriage, New York Times, (February 10,
1991)
Xl. A. Sullivan, "Demand for Prenuptial Agreement is on the Rise: Kiss me and Sign here,
Darling."
XII. B. Greenstein, "Prenuptial Agreements: What they can and cannot accomplish".
X11I. 1. Morley, "Enforceable Pre-nuptial Agreement; The World View",
http://www.inlernationaldivorce.com/emdand prenuptial
XIV . M.E. Sudi, "Prenuptial Agreements: Blessing or Curse."
http://saiclm.v.co.ke/p renuptialcw.reementsb lessingorcurse/ (accessed on 1 June 2016).
Page I 42
II. LEGISLATIONS
1. Marriage Act , 2014
11. Matrimonial Property Act, 2013
111. Constitution of Keny a, 2010
IV. Married Women's Property Act, 1882.
v. Judicature Act, (Act No . 14 of 1977).
VI. Family Law Act (1975) Cth
V11. Uniform Premarital and Marital Agreements Act, 2013
III. CASE LAW
1. Posner v Posner, 206 So.2d 416 (Fla. Dist. Ct. App. 1968).
11. Karanja v Karanja (1967)
111. Ex Parte Burger [1995] 1 S.A. 140.
IV . Gould v Rafaeli, 822 S.W.2d 494 (Mo. Ct. App.) (1991).
v. Brooks v Brooks , 733 P.2d 1044, 1048 (Alaska 1987).
VI. In Re Marr iage ofBonds, 5 P.3d 815 (California 2000).
V11. In re Marriage ofShirilla, 89 P.3d 1, 3-4 (Mont. 2004).
V111 . in re Yannalfo 794 A.2d 795, 796 (N. H 2002)
IX. Alexander v Alexander, 610 S.E.2d 48, 49 (Ga. 2005) .
x. Corbett v Corbett, 628 S.E. 2d 586, (Ga. 2006).
Xl. Hoag V Dick, 799 A.2d 391, (Me. 2002)
XII. Granatino v Granatino, [2009] All ER (D) 31 (luI).
X111. Fothergill v Monarch Airlines Ltd, [1981] AC 251
IV. INTERNET SOURCES
http://w\v\v.academia.eduil 3746937!Legal status of pren uptia l aiLreements in Ken
yg
http ://\vw'vv.scholarship .la\v.wm.edu/wm jowlivoI13/iss2!?
http://www.nvsscpa .oru/cpajournallold/ 136067/5 .htm-41k
http://w ww.internat ionaldivorce.com/enQlancl prenuptial
Page 143
V. DOCUMENTS
House of Representatives Hansard 7705, Federal Attorney General's Second Reading
of the Family Law Amendment Bill, (1999).
VI. UNPUBLISHED DISSERTATION
Annalise J, "Is there a need for prenuptial agreements in Zambia?" Unpublished LLB
dissertation, University of Zambia, 6 February, 2008.
Page I 44