March 7, 2024

The Love Contract: Navigating the Legalities of Love in Kenya

Valentine’s Day is Here! Let’s Talk About Love, Legally Speaking…

Valentine’s Day conjures images of flowers, chocolate, and romance. It’s a special occasion to celebrate love and romance with your partner. Granted, you might have already made arrangements for a special date, bought a gift, or written a card to express your undying love for your partner (whom you met on a dating app that matched the two of you just because both of you were too lazy to swipe right on anyone else)… But let’s forget about the overpriced roses and designer chocolates for a moment, lovebirds! Have you guys considered the legal aspects of your romantic relationship? Did you know that love also has legal implications?

alentine’s Day celebrates passion and romance, but it also presents a perfect opportunity for you to discuss the often-overlooked aspect of love: LEGALITY. Whether you are secretly married, hopelessly engaged, or casually dating, there are some legal tips that you should know to protect your rights and interests in case of separation, divorce, or death. So, go ahead and grab your partner – or a pen and paper if you’re flying solo – because we are about to dive deep into the Legalities of Love in Kenya!

1. The Prenuptial Agreement: Not Just for the Young, Rich and Famous

A Prenuptial Agreement (or prenup) is a contract that you and your partner sign – while still happy and madly in love – before getting married, to determine how your property and finances will be divided if you ever divorce. It can also specify other matters, such as alimony (spousal support), child custody and inheritance. A prenup gives you peace of mind and clarity about your financial rights and obligations in your marriage. The Matrimonial Property Act, 2013 provides for prenuptial agreements by allowing parties to an intended marriage to enter into an agreement before their marriage to determine their property rights.

ou may think that prenups are only for the young, rich and famous, or that they are unromantic and a sign of mistrust and lack of commitment. Well, you might want to T-H-I-N-K. T-H-A-T. A-G-A-I-N. A prenup is for anyone who wants to have more control over their financial and personal affairs. It can really help you avoid unnecessary conflicts and disputes that can arise during a messy, noisy and uneasy divorce (with casualties). It can also save you time and money by reducing the need for court intervention. A prenup gives you the power to decide what belongs to whom, rather than leaving it to the courts or the law.

FOR EXAMPLE, suppose you have a successful business that you started before you met your partner and you want to keep it as your own, even if you ever get divorced. WITHOUT a Prenup, your partner can successfully claim half of your business as part of the matrimonial property or based on the acquisition of a beneficial interest in the property by contribution. WITH a Prenup, you can protect your business and decide how much, if any, you want to share with your partner. So, before saying “YES, I DO” like the smitten fool that you are, you might want to cushion that love with the safety net of a prenup!

2. The Marriage Certificate: The Official Stamp of Love

A Marriage Certificate is more than just a piece of paper. It is ultimate legal proof that you and your partner are married in the eyes of the law. It can help you in many ways, such as opening a joint bank account, changing your surname, getting a passport, filing taxes, claiming benefits, and inheriting property. In Kenya, the law requires a romantic union to be registered for it to be legally recognized as a marriage. To obtain a marriage certificate, you need to register your marital union with the Registrar of Marriages. The Marriage Act, 2014 allows you to register any of the 5 recognized types of marriages – Christian, Civil, Customary, Hindu and Islamic.

I hate to burst your bubble but your unholy “come-we-stay” union with your partner may charm your supposed ‘in-laws’ into believing that you are legitimately married, otherwise it is legally known as a Common Law marriage, which is when courts assume a relationship to be a marriage based on cohabitation. However, cohabitation is not considered a marriage in itself and does not carry the same legal weight as a registered marriage. It will not hold up automatically in a legal battle in court if things go south.

The marriage certificate is especially important for couples who intend to be married under customary law. Customary Law marriages are based on the traditions and customs of your community and are the preferable choice of marriage for many couples because they are relatively affordable and convenient while paying homage to the cultural heritage and values of your political tribe. However, customary marriages can also expose you to certain legal risks and challenges if you do not have it legally registered or obtain a marriage certificate.

FOR EXAMPLE, suppose you are a woman who marries a man under customary law. You have a successful career earning a good income and you have invested in a joint business with your husband. WITHOUT a Marriage Certificate, you may have no legal rights to the business or its profits if your husband dies or divorces you. WITH a Marriage Certificate, you can legally protect your interests and assets and avoid being cheated (on) by your husband or his family. So, if you have already said “YES, I DO” it might be a good idea to spread your legs fast enough to the Attorney General’s Office and get that official stamp of love!

3. The Last Will: Because Forever Doesn’t Always Mean Forever

A Will is a document that expresses your wishes about how your property and assets will be distributed after your death. It can also name a guardian for your minor children, and an executor for your estate. A will can ensure that your loved ones are well taken care of and that your legacy is preserved according to your intentions. If you die without a will, your estate will be divided according to the Law of Succession Act, Cap. 160 which may not reflect your wishes or the best interests of your beneficiaries. You can make or change a will at any time, as long as you are an adult of sound mind.

In Kenya, you cannot completely cut off your spouse from your inheritance and even if you did not support them, they can still claim your property after you die. However, you can make a will to decide who gets what and how much. You can also decide to leave out anyone that you don’t want to share your wealth with. A good will therefore saves you and your family from trouble and uncertainty and makes sure your wishes upon death are respected, no matter what happens. And no, writing a will today does not mean that you have a death wish. Relax!

FOR EXAMPLE, suppose you have children from a previous relationship. You may want to leave some of your property to them, but also provide for your current partner. WITHOUT a Last Will, your current partner could inherit everything and leave nothing to your children from the previous relationship. WITH a Last Will, you can specify exactly how much and what you want to give to each of them. Love may be eternal, but unfortunately, Life is not. So be sure to draft that last will immediately after exchanging vows before death do you part!

Remember, Love is More Than Just a Feeling…

Valentine’s Day is a wonderful occasion to show your love and appreciation for your partner. But it is also a great opportunity to talk about the legal stuff that can make or break your romantic relationship. By ironing out issues about a prenup, marriage certificate and last will, you can legally make it official with your Valentine’s Date!

These legal matters are not meant to cool down the heat of love, but rather to warm it up with a base of understanding and clarity. Therefore, discussing these issues sincerely and cordially with your partner can improve the level of trust, communication, and ultimately, a more secure and enjoyable relationship.

So, this Valentine’s Day, while you’re busy spoiling your darling with romance, remember to also spoil them with the gift of legal wisdom. After all, true love is not just about chemistry, but also about building a solid and happy future together, one legal step at a time. Happy Valentine’s Day!

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