THE VIABILITY A DISSERTATION OF PRE-NUPTIAL SUBMITTED NAIROBI IN PARTIAL TO THE SCHOOL FULFILMENT BACHELOR AGREEMENTS IN KENYA OF LAW UNIVERSITY OF THE REQUIREMENTS OF LAW DEGREE OF FOR THE (L.L.B) BY HANNAH WAMBUI GITAU G34/29590/2009 PREPARED UNDER THE SUPERVISION OF MRS PAMELA AGER UNIVERSITY OF NAIROBI SCHOOLOFLAW KENYA i IP age CHAPTER ONE Introduction , The notion of family is very important in understanding the aspect of matrimonial property and the rights attached thereto. What is a family? The definition of family may apply in both African traditional understanding and the English notion. The English notion of the word family has come to assume precedence in certain respectsdue to the advent of received law and due to the fact that received law has in practice always superseded customary law. J For our purpose we may regard family as a basic social unit which consists normally of husband, wife and their children that though it is not necessary that all these should be members of the family at the same time. The husband and wife at all times form the basis of the family structure which enlarges due to the children that thereafter come along. From the aspect of family comes marriage. Marriage is an institution. It is a unification of man and wife who come together and create a bond and therefore a family with the inclusion of children. Marriage is also a contract. certain legal relationship It is an agreement by which man and woman enter into a with each other and creates and imposes mutual rights and duties. However, the classic definition was illustrated and put forward in Hyde v. Hyde by Lord Penzance where he defined it as 'the voluntary union for life of one man and one woman to the exclusion of all others'. Marriage therefore can be said to have two meanings the ceremony or act of marrying and the relationship existing between husband and wife or the state of being married.2 'Section 3 of the Judicature Act, Cap 8 Laws of Kenya lists the sources of law in Kenya by order of precedence. 2Bromley family law (1992)8Ih edition London Butterworth's. The aspect of marriage But the increasing this definition being voluntary availability somewhat of divorce inaccurate Roman Catholic Marriage after the Second thus the most accepted definition widen the kinship network and the integral of the individual which flow from these relationships as well. or descent The family through are personal system and that consisting purpose therefore duties which somewhat each spouse in Kenya is mainly residence. property reform by the Matrimonial deemed middle involved. were infringed. is" century." sole' with respect p. Nachirnson (Supra "Supra. , note 4 5 Supra" note 2 6 Dicey op. cit. p.p, 382-395 7 Supra, note 2 chp. 17 pg, 560 n 2) at pp225, agitation about certain to any property dispose of legal interest either inter vivos or by will. 3Nachimson of paternal is emphasized by the The relationship creates 227(per The rights infringed were a lot. They would work and whose husband involved there disserted her was an agitation for led to the development changes acquired of the such as the wife being and she had sole power 7 lord hanworth were mistresses. by the woman The Causes Act of J 857 which brought to be 'feme consisting to them since the husbands with him.5 Due to these circumstances, of the being to family before marriage. were on the rise. Women suffered no relief could be obtained and took all her property of marriage to fulfill and takes care of. In the past, these duties were not of any form of advantage to Bromley, is expected But they may affect rights patriarchal would take it from them for their own benefit or even that oftheir According by the Most of the rights and duties This system among the persons and rights of a woman in marriage many but those involving which is entitled of the institution and not proprietary. of patemal creates legal obligations lopsided get earnings by Lord Europe that every individual procreation. need for the groom or his family to pay dowry to the bride's Marriage War made is one coined taken in Western context is defined as a rite of passage in his or her lifetime in property World Church and other denominations. in the traditional to undergo lineage cases particularly in Hyde v. Hyde.' This was the view traditionally Penzance in Nachimsonv.Nachimson.i and for life was highlighted MR), 235 (per Lawrence LJ,) to The Married Women '5 Property Act of 1870 came along and later the Married Women '5 Property Act of18828 on which Kenyan law relied a lot on this Act in the creation and passing of its own legislation. There rate of divorce cases in Kenya has been on the rise.9 The courts are thus very important. When spouses divorce, it cannot be expected that they will themselves be able to make dispositions of the matrimonial property on the basis of what in the circumstances, thought by an independent person to be fair and just.Even would be with the law at hand to guide the courts with regards to this issue, it has become quite difficult for the courts. Agreements between married parties on how their property may be divided upon dissolution or death may be very useful in curbing this menace that has been facing the courts for many years. These agreements known as pre-nuptial agreements will assist parties to plan ahead and be smart about the future. Pre-nuptial agreements may be new 111 Kenya but they have already been adopted by many countries. Scholars say that the practice began with the ancient Egyptians and that they have been there for many centuries in Anglo-American tradition. An example is the Ketubah, the Hebrew marriage contract dating back 2000 years ago. It was one of the first legal documents giving financial and legal rights to women. to Marriage is described as a legal contract between two individuals who unite for emotional, spiritual and economic gain. Upon the dissolution of marriages, the court has been having that uphill task of assessing the matrimonial property and determining how it will be divided between the parties. The law must therefore provide a framework that seeks to ensure that matrimonial property is handled equitably upon divorce. Thus Gray and Symes observe that 'the economic problems caused by marital breakdown can no longer be resolved purely in terms of maintenance and subsistence. It has now become a task for the law to arrange for a fair distribution of not only the revenue resources but also the capital resources built up during marriage.' 8Ibid 9The Nation, 'Kenya: Survey reveals Kenyan marriages in crisis amid pressures of modern life' Kenya, 21 st June 2010. 10 Katherine Stone and Shae Irving Prenuptial Agreements: How to Write a/air and Lasting Contract, (2012) 41h Edition, pg. 1/2 2 I p;, g e Pre-nuptial agreements are a reallyeffective way of ensuring that parties in a marriage get what they desire upon dissolution of the marriage or even death of one of the parties in the union. Though there is no known incidence of a pre-nuptial agreement on Kenya.pre-nuptial agreements have been seen to be applicable in countries such as Thailand, South Africa, and USA etc. It is quite encouraging that Kenyan law has taken a step towards embracing this idea of the prenuptial agreements. As such this dissertation seeks to look into the issues of division of matrimonial property and answer questions arising about pre-nuptial agreements such as:I. II. Ill. Are these agreements viable in Kenya with regards to the pre-existing Kenyan law? Will the citizens of Kenya make use of these agreements? Will it be used by the rich only? These arc some of the questions this research may seek to answcr.The viability and applicability of this new phenomenon in our country is the big question and this research will be based on analyzing whether the pre-existing laws, people of different customs, culture and religion are willing to embrace this new aspect. 1.1 Background of the problem With regards to family law, different jurisdictions handle matrimonial property differently. There are those that have separate property for areas that embrace common law and othershave community property jurisdictions. With regards to this, certain properties acquired in community property jurisdictions property; during pendency such property is owned of marriage in common are automatically by husband deemed and wife during community marriage. Unfortunately while both regimes move are trying to allow for straight forward management for of property during the pendency of the marriage, there is no equitable sharing of property where the marriage is estranged or terminated, If property is immovable it would be transferable by one partner without the need for express consent by the other party. If property is immovable it is required that both parties consent upon transfer.In such separate property jurisdictions, property acquired by spouses individually is 3/Page