What is a post-nuptial agreement in Kenya?
A post-nuptial agreement is a written contract entered into after a valid marriage is celebrated, in which spouses agree on how their property, finances, and related matters will be dealt with during the marriage, upon separation, or at divorce. It essentially functions like a prenuptial agreement but is executed after the marriage has already taken place.
In Kenya, post-nuptial agreements are not expressly defined in the Matrimonial Property Act, 2013, but courts have treated them as contracts sui generis enforceable under general principles of contract law.
Kenyan courts have affirmed that where a post-nuptial agreement is entered voluntarily, with full disclosure and without fraud, duress, or undue influence, it is binding and enforceable between the spouses.
What is a Divorce and Settlement Agreement (DSA)?
A Divorce and Settlement Agreement (often called a Divorce Settlement Agreement or Separation Agreement) is a comprehensive written agreement, usually concluded when spouses are separating or in the process of divorce, that sets out how they will deal with property, maintenance, and, sometimes, arrangements relating to children. It can cover issues such as division of matrimonial property, transfer of specific assets, spousal maintenance, and how each party will bear liabilities arising from the marriage.
The High Court in JJM v JLM (Matrimonial Cause E057 of 2021) treated a DSA as a post-nuptial agreement. It held that, if validly concluded, it is a binding and enforceable contract governing the distribution of matrimonial property. Accordingly, the division of property should proceed strictly in accordance with the terms of the DSA.
How does a Post‑Nuptial Agreement compare to a Prenuptial Agreement?
In Kenya, prenuptial and post-nuptial agreements share the common purpose of regulating spouses’ property rights, but they differ in timing and statutory basis. A prenuptial agreement (prenup) is a contract entered into before marriage to specify the parties’ financial and property rights if the marriage ends by divorce or death. Unlike post-nuptial agreements, prenuptial agreements are expressly recognized in the Matrimonial Property Act (MPA).
Prenuptial vs post-nuptial/DSA in Kenya
| Aspect | Prenuptial agreement | Post-nuptial agreement | Divorce & Settlement Agreement |
| Timing | Signed before marriage. | Signed during the marriage but not necessarily at separation. | Signed during separation or in contemplation of or during divorce. |
| Express statutory basis | Expressly recognized under section 6(3) Matrimonial Property Act, 2013. | Not expressly provided in statute; recognized under general contract principles and case law, such as DNK v KM and SM v MNM. | Not expressly defined, but recognized as a binding contract in matrimonial causes, e.g., JJM v JLM. |
| Main function | Predetermine property ownership and division during and after marriage, including pre‑marital, marital, and separate property. | Adjust the parties’ property regime and financial arrangements after marriage, often following major events (e.g., business growth, relocation, inheritance). | Provide a full package settlement on property, maintenance, and related issues as part of divorce or separation proceedings. |
| Court approach | Generally upheld if voluntary, fair, and with full disclosure; may be set aside for fraud, coercion, or manifest injustice. | Enforced if they meet contract law requirements and are not contrary to public policy or statutory protections. | The court will normally enforce if voluntarily signed, implemented by the parties, and not vitiated by fraud, duress, or unconscionability. |
Are post-nuptial agreements and DSAs legal in Kenya?
Yes. Although Section 6 (3) of the Matrimonial Property Act explicitly mentions only prenuptial agreements, Kenyan courts have repeatedly held that post-nuptial agreements, separation agreements, and DSAs are valid and enforceable under the general law of contract, provided they satisfy the usual contractual requirements.
In JJM v JLM, the High Court held that legislative silence on post-nuptial agreements does not render them unenforceable and reiterated that such agreements are contracts sui generis, enforceable under ordinary contract principles, including the doctrines of estoppel and the bar on unilateral rescission without legal grounds.
What is the governing legal framework for nuptial and settlement agreements in Kenya?
The legal framework is a blend of constitutional principles, statutes and case law. Key instruments and doctrines include:
- Constitution of Kenya, 2010
- Article 45(3) guarantees equal rights of spouses at marriage, during marriage, and at dissolution, guiding fair distribution at divorce.
- The Matrimonial Property Act, 2013
- Section 2 defines contribution broadly to include monetary and non-monetary contributions, such as domestic work, childcare, and management of family business.
- Section 6 defines matrimonial property (matrimonial home(s), household goods, and other property jointly acquired during marriage).
- Section 6(3) expressly allows parties to an intended marriage to enter into a prenuptial agreement determining their property rights.
- Section 7 ties the division of matrimonial property to each spouse’s contribution, as interpreted by superior courts.
- Section 14 establishes presumptions about property acquired in one or both names during marriage.
- Marriage Act, 2014, and Marriage (Matrimonial Proceedings) Rules
- The Act provides the grounds and procedure for divorce and permits parties to enter into agreements on maintenance and ancillary relief, subject to court scrutiny and the prohibition on collusive petitions.
- The Children Act 2022
- Parties may conclude parental responsibility agreements regarding childcare and maintenance, which become binding when adopted by the court, always subject to the best interests of the child.
- General contract law (common law and case law)
- Courts rely on general contract doctrines such as capacity, intention to create legal relations, consideration, absence of vitiating factors (fraud, misrepresentation, undue influence, duress), and the principle that courts do not rewrite contracts freely concluded by parties.
What did the High Court decide about the validity of a Divorce and Settlement Agreement in JJM v JLM (2025)?
In JJM v JLM, the parties were a couple married on 27th Dec 1980; their marriage was dissolved on 29th Nov 2024. However, during the course of the marriage, the couple executed a Divorce and Settlement Agreement on 4th Nov 2017, allocating their matrimonial properties between them, including a Nairobi apartment and rural parcels. However, the applicant, the ex-husband, later sought to rescind that agreement while seeking a fresh division of property under the Matrimonial Property Act. The ex-husband argued that he had rescinded it by email to their son (a witness), that it was skewed against him, and sought a distribution based on contribution.
The High Court made several key findings:
- A Divorce and Settlement Agreement is a valid and enforceable contract
The court held that, although the Matrimonial Property Act is silent on post-nuptial agreements, such agreements are contracts sui generis and are enforceable under general contract law if voluntarily executed and not vitiated by fraud, coercion, or manifest injustice. - A party cannot accept benefits under a DSA and later challenge it
The court applied the doctrine of estoppel by conduct, noting that the husband had used the DSA to sell a property and benefit from the proceeds. Having used the agreement to his benefit, he was estopped by the doctrine of approbation and reprobation from later challenging its validity and seeking to avoid its burdens. - A DSA cannot be rescinded unilaterally
The husband’s attempt to cancel/revoke the agreement by emailing their son was invalid. Rescission must be:- Communicated to the other contracting party
- Based on legally recognized grounds such as fraud or coercion.
- Courts will not rewrite contracts for parties
Unless vitiating factors are proven, courts will enforce the agreement as written.
This decision significantly strengthens the enforceability of DSAs in Kenya. - Binding effect of DSA on property division
The court declared the DSA to be a valid, binding, and enforceable contract and ordered that the distribution of all properties acquired during the marriage would be governed exclusively by its terms, effectively disposing of the suit.
What are the key elements of a valid Post-Nuptial Agreement?
While there is no single codified checklist, Kenyan statutory and case law suggest that a valid post-nuptial agreement or DSA should exhibit the following elements:
- Capacity and proper parties: Both spouses must have legal capacity to contract (full age, sound mind, not under legal incapacity).
- Full Financial Disclosure: Both parties must honestly disclose all assets and liabilities. Hiding wealth is a primary ground for setting an agreement aside.
- Independent Legal Advice: Both spouses must have their own separate lawyers. This proves that neither party was “outgunned” or lacked an understanding of their rights.
- Voluntary consent, free of vitiating factors: The agreement must be signed without pressure or threats (duress).
- Written Form: The document should be in writing, clearly identifying the parties and setting out specific properties, interests, and obligations, leaving minimal ambiguity.
- Lawful and fair content: The terms must not be illegal or contrary to public policy, for example, by purporting to exclude statutory rights on children’s maintenance or to oust the court’s jurisdiction.
- Proper execution and attestation: The agreement should be duly signed by both spouses and witnessed; if it involves the disposition of interests in land, Land Registration and related formalities should be observed for registrable instruments to be effective against third parties.
- Substantive Fairness: While it doesn’t have to be 50/50, it cannot be so “unconscionable” or “manifestly unjust” that it leaves one spouse destitute.
What issues can a post-nuptial agreement or DSA cover?
A well‑structured post‑nuptial agreement or DSA can address a wide range of issues, provided they remain within legal bounds:
- Division of matrimonial property: Identification and allocation of the matrimonial home(s), investment properties, land, shares, business interests, and movable property. Treatment of property acquired before marriage, inherited property, and gifts:
- Spousal maintenance and financial support: Terms and duration of spousal maintenance, lump‑sum payments, and how each party will meet ongoing financial obligations post‑
- Management and use of assets pending divorce: Who occupies the matrimonial home, who manages income‑generating assets, and how rental or business income will be applied.
- Liabilities and debts: Allocation of responsibility for personal and joint debts, guarantees, tax liabilities, and business obligations.
- Children-related arrangements (subject to court supervision): Parenting plans and parental responsibility agreements, including residence, contact, and sharing of school and medical expenses, which the court may adopt where consistent with the best interests of the child.
- Dispute resolution mechanisms: Agreement on mediation, arbitration, or other ADR methods before or alongside litigation if disputes arise about implementation.
Why Should Couples Consider a Post-Nuptial Agreement?
A well-drafted DSA helps:
- Reduce conflict during divorce
- Protect assets and financial stability
- Ensure predictable outcomes
- Save time and legal costs
- Preserve dignity and privacy
How do courts balance DSAs/post-nuptial agreements with contribution-based division under the Matrimonial Property Act?
Kenyan courts recognize that spouses are free to contract regarding their property rights, but remain bound to respect constitutional and statutory principles on matrimonial property. Where there is a valid prenuptial agreement or post‑nuptial/DSA, the court will generally give it significant weight, and in many cases treat it as determinative of property division, unless there are grounds to set it aside.
Where no binding agreement exists, the court reverts to the contribution-based approach under sections 2, 6, 7, and 14 of the Matrimonial Property Act, as interpreted by the Supreme Court in JOO v MBO, assessing both financial and non‑financial contributions to arrive at a fair and equitable distribution rather than an automatic 50:50 split.
Can parties rely on “mutual consent” alone to dissolve a marriage in Kenya?
No. Kenyan law currently does not recognize divorce by mutual consent alone. The High Court has confirmed that Kenya retains a fault-based or circumstance-based divorce system, requiring proof of grounds such as adultery, cruelty, desertion, or irretrievable breakdown, supported by evidence.
However, while spouses cannot dissolve a marriage purely by mutual consent, they can use a DSA to settle ancillary issues (property, maintenance, and parental responsibility) by agreement, which the court may adopt or respect when making final orders in the divorce cause.
How Njaga & Co. Advocates LLP Can Assist You
At Njaga & Co Advocates LLP‘s Family Law department, we understand that family law matters are deeply personal and legally intricate. Our team provides strategic and empathetic counsel to protect your interests and your peace of mind.
We offer specialized services in:
- Drafting and reviewing Post‑Nuptial Agreements
- Negotiating fair Divorce & Settlement Agreements
- Advising on matrimonial property rights
- Representing clients in divorce and separation proceedings
- Wealth protection advice through incorporation of family trusts and other avenues
- Handling child custody, maintenance, and parental responsibility matters
- Providing strategic legal planning for diaspora and foreign spouses
If you are considering a post-nuptial agreement, are navigating divorce settlement terms, or need legal guidance on any aspect of family law, contact us today. Our team will ensure that your rights are protected and that agreements are structured to withstand judicial scrutiny.
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
