Prenups no longer preserve of few

Tuesday, May 18th, 2021 22:19 |

Milliam Murigi @millymur1

Many people were recently astonished upon learning that billionaire Bill Gates did not have a prenuptial agreement commonly referred as prenup in place prior to his marriage to Melinda.  

The reason being that it is now almost a norm for anyone who brings significant assets into marriage to have a prenup drawn up.

As divorce rates keep growing and post-marital disputes over money and property increasing, a few are turning to prenuptial agreements. However, some see them as a turn-off.

A prenup is an agreement between a couple signed before they get married, which sets forth the division of their assets in the event of divorce or death. It typically lists all the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.

No longer a sign of doom

 “If one is willing to draw up a contract about how to divide property before the marriage even starts, that shows that the relationship is not strong from the word go,” says Susan Kaburu. 

She says she can never get married to someone who asks for a prenup because it represents a lack of absolute trust and respect.

She says that if a man can trust her with his life, why not trust her with his finances and assets?

Peter Muriithi is, however, is of a contrary opinion. He says in this day and era, a prenup is one of the most important documents, which every couple should have.

This is because a prenup puts financial expectations out on the table before the wedding and in the event of divorce, a prenup eliminates battles over assets and finances.

“Some people look at a prenup as a way of planning for the divorce even before the marriage starts, but this is not true,” says Muriithi.

Though for many generations, a prenup was treated as the signal of a doomed marriage, today prenups are no longer taboo.

Actually, it is a solution to an existing family problem and even the law recognises it.

In Kenya, prenuptial agreements are now provided for in the Matrimonial Properties Act of 2013 under Section 6 (3).

Beatrice Sawe, an advocate of the High Court who also doubles up as a family and commercial mediator says that though prenup might seem unromantic, this is one document that every couple needs.

According to her, the low uptake of this service in Kenya is because many are still under the impression that prenups are only for the wealthy who have a lot of assets to protect.

The benefits

However, she reveals that any couple that is planning to buy a property together, have shared savings or make a large joint purchase, such as a car, should state who is the owner in case the marriage was to ever break down.

“Prenuptial agreements are common in Western countries. In Kenya, it largely emerged after the 2010 Constitution in the Matrimonial Property Act, which recognises agreements between spouses in regards to their property, though it is yet to gain ground.

The reason being cultural mindset such as contemplation of divorce and it is also seen as a sign of mistrust,” adds Sawe.

Sawe says spouses in Kenya often resort to the said provision when there’s already a crisis and the matters are already in court or being handled by lawyers or mediators.

Signing such an agreement have so many benefits. It helps avoid acrimony during divorce and division of property.

It also helps and makes matters easy where spouses had personal property before marriage.

For spouses who already had children from other relationships before marriage, this is also an important document because it spells out how one wants the money and other assets to be split up.

However, the bad side of it is that such agreement can benefit the spouse who has more or a higher earning capacity and it can be used to disadvantage the weaker spouse.

According to Sawe, prenups misconceptions are mostly similar to life insurance misconceptions.

People think it is a bad omen. That is why controversy surrounding prenups doesn’t seem to be ending any time soon.

“Having a prenup in place gives you the reassurance that if your relationship was to end, what was yours when you entered the relationship, remains yours if you parted ways.

It can also make provisions for any discrepancy in wealth as you progress in your career or inherited property,” she adds.

When asked why only a few people are signing up these agreements despite the good number of benefits, Sawe says that many people are not even aware that such agreements exist as an option neither do they understand what such agreements entail. With that people generally, avoid what they do not understand.

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