Divorcing a poorer spouse in Kenya

1. Prenuptial Agreement

An agreement may be reached between the parties to establish their property rights before marriage. This agreement is very important in mixed-income unions, as it clarifies who owns what property and what property will go to the matrimonial. It also provides a basis for division. It is possible to include clauses regarding year-based divorce settlements so that one spouse has access to certain assets/alimony after a specified number of years.

2. Clear Outlining Matrimonial Property and Sole Property

It is important to keep a clear inventory of all assets, solely or jointly, and to outline the contributions of spouses.

It can be as simple as having both parties access a spreadsheet at all times.

3. Good faith negotiations and reduced hostility during divorce proceedings

Although Kenya doesn’t allow for no-fault divorces, and the divorcing spouse must prove the marital offense committed by the other spouse to be valid, there is no reason to not have an amicable separation. This is important to avoid an unfavorable and expensive divorce. You can engage in either direct negotiations with your spouse, or family mediation, to settle. This will avoid any hostile litigation regarding matrimonial property issues during a court case. A divorce agreement regarding property division can be submitted to the court for adoption.

4. If your spouse works in your business, you should formalize any agreements

Although you may have started a business before marriage, it may be considered solely your property. However, circumstances after marriage could make the business matrimonial property. This is where your spouse works in the business to build it or run it. In such cases, the court could consider the business to be a family business. Your spouse may be entitled to a part of the business if they make a non-financial investment in the business’ growth. You can formalize the spouse’s status in the business by drafting agreements, etc. This will help you to show that the business is not a family-owned business and does not fall under the S 2 of The Matrimonial Property Act.

5. Do not mix Incomes and Assets that you wish to retain as separate assets or incomes.

It is best to not commingle assets that you do not want to become your solely-owned assets during the marriage. For example, you might not put up a matrimonial or another asset to secure a loan for cash. If you wish your business to not be considered matrimonial, you should monitor your spouse’s contribution to the performance and operation of your business. Also, be aware of the possibility of your spouse making improvements to an asset that is solely yours.

Also, although the family law firm surrey generally states that liabilities over separate assets are the liability of the separate owner if liabilities are incurred for the benefit of the marriage, the spouse who assumed they didn’t incur joint liability may be surprised to learn that joint liability can be attributed to you even though you didn’t personally suffer it.

6. Monitoring Liabilities incurred by a spouse who is poorer during the marriage

It is important to be aware of the liabilities your spouse suffers during the marriage. You may mistakenly believe that your spouse has incurred a separate liability. However, your spouse could be held jointly liable if your spouse can show that the liability was incurred in the best interests of the marriage. If the court finds it necessary, you could be jointly liable for any liabilities you have not agreed to or signed for.