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Time to embrace prenuptials in Kenya?

By - Harold Ayodo | Updated Wed, September 26th 2012 at 00:00 GMT +3

By Harold Ayodo

Fear of the unknown is fast pushing fiancés to consult property lawyers before walking down the aisle.

They shuffle between pre-marital counselling for matters family, and secretly to law firms for tips on holding on their investments even as they edge towards marriage.

 The majority include independent women with investments in real estate that have resolved to tie the knot but hold onto ‘my’ personal property.

 Legally, married women can keep their own separate property, which they can sell and write a Will on who should inherit their investments upon death.

 Married women can also buy or inherit property and enter into business contracts on their own volition.

 They can also use their  property as security to take loans from banks and sued personally for debts from their investments.

Female fervour

Currently, real estate agents concur that a sizeable number of their clients who have bought apartments in upmarket areas are women.

And to avoid an onslaught from male readers, similar legal principals on property apply to married men too.

 Financial experts attribute economic empowerment to the grip of women in real estate and the Nairobi Securities Exchange (NSE).

 But some of the single women are determined to hold onto their property that any man who attempts to date them is branded a suspected gold digger.  

 Others are even particular that they will only get married to men who equally own property to balance the equation.

 According to the propertied women, marrying a ‘hustler’ with no investment portfolio would make them lose should the marriage hit the rocks.

 They are even aware that some men struggle to date and marry them to eventually inherit their property when they die.

 Constitutionally, parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at its dissolution.

 Separately, the Law of Succession Act provides that the husband automatically takes over property of his late wife.

 It is for such reasons that many independent women prefer keeping cards closely to their chests or under the table.   

 Some even prefer being single mothers as marriage laws in the country have no provisions for prenuptial (prenups) or post-nuptial agreements.

 Prenups are big business, and in most cases, wealthy people who are in love risk fortunes by signing the agreements.

 Take the case of Hip Hop mogul Jay-Z and his wife Beyoncé who signed a prenup that promised her at least ten million dollars (Sh840,000,000) if the marriage failed within two years.

 The R&B singer would earn an extra one million dollars (Sh84m) for every year they stay together thereafter.

In addition, if Beyoncé had any of his children, she would receive a whooping five million dollars (Sh420,000,000) extra for every child.

Prior agreement

 At the time of their wedding in 2008, Beyoncé was worth 100 million dollars (Sh8.4billion) and entitled to 25 million dollars (2.1B) if they split, according to the National Enquirer.

 A prenuptial agreement is a legal mutual agreement entered into by engaged couples prior to being married, while a post-nuptial is signed after a couple is married.

 The two agreements, which are common in the West, deal with what should happen to assets of the couple in the event of divorce.

 Moreover, additions can also be made in prenuptial or postnuptial agreements to include provisions and recommendations for alimony and division of property.

 Therefore, without the agreements, some women prefer to include their children as their next of kin in Wills.

 But some parents introduce babies to property ownership early to prepare for their future.

 Others opt to register property in the names of their children to avoid battles over matrimonial property should divorce beckon.

For some married women, registering property under children is the surest way of locking out from inheritance children their husbands may father with mistresses.

The writer is an Advocate of the High Court of Kenya.

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