Introduction
Prenuptial agreements (commonly called prenups) are contracts made between couples before marriage, outlining how assets, debts, and financial responsibilities will be handled during the marriage and in case of divorce, separation, or death. In Kenya, prenuptial agreements are increasingly used by high-net-worth individuals, business owners, foreign investors, and couples in blended families to protect their interests.
The rise in financial disputes during divorce has made prenups a prudent legal tool. Their recognition and enforcement in Kenya is grounded in the Matrimonial Property Act, 2013 and supported by emerging judicial decisions.
Key Analysis of Prenuptial Agreements in Kenya
- Legal Framework
The Matrimonial Property Act, 2013 expressly allows prenuptial agreements. Under Section 6(3), a couple may enter into an agreement before marriage to determine how their property will be owned during the marriage. Such agreements override default community of property assumptions and must be:
- In writing,
- Voluntarily entered,
- Based on full financial disclosure, and
- Ideally with independent legal advice for each party.
The Marriage Act, 2014 also supports contractual freedom in marital relations, provided no terms are unconscionable or illegal.
- What a Prenup Can Cover
A valid prenuptial agreement in Kenya may address:
- Ownership of pre-marital and post-marital property,
- Management of business assets,
- Responsibility for debts and liabilities,
- Handling of inheritances or gifts,
- Spousal maintenance (alimony) terms,
- Division of matrimonial property upon divorce.
However, child custody and support provisions are not binding in a prenup, as these are subject to the best interests of the child, under the Children Act, 2022.
- Court Interpretation
Kenyan courts are increasingly open to enforcing prenups if legally compliant.
- In DNK v GS [2023], the High Court refused to nullify a prenup executed abroad, affirming its binding nature unless successfully challenged for unfairness.
- In Matrimonial Cause E022 of 2021, the court upheld the principle that parties are bound by their own agreements, distinguishing between pre- and post-nuptial agreements.
The courts also retain the power to invalidate a prenup if it was signed under fraud, coercion, undue influence, or is grossly unfair. Contact our team of top family lawyers at F.M Muteti & Co. Advocates for customized assistance
- Best Practices When Drafting
To enhance enforceability:
- Sign the agreement well before the wedding (preferably 3–6 months).
- Ensure voluntary participation—avoid last-minute pressure.
- Include a clause allowing amendments or revocation by mutual agreement.
- Get the agreement witnessed and possibly notarized.
- Attach a schedule of disclosed assets and liabilities.
Conclusion
Prenuptial agreements in Kenya are legally recognized tools for safeguarding personal and family wealth. When properly drafted, they provide transparency, reduce litigation risk, and offer peace of mind to both spouses. Kenyan courts have shown growing respect for these contracts, provided they are fair, transparent, and entered voluntarily.
Whether you’re a business owner, part of a blended family, or a Kenyan living abroad with assets at home, a prenup can help you define property rights clearly. To ensure validity and protect your interests, always engage a qualified family lawyer to draft or review your agreement.