The primary objective is to achieve effective segregation of inherited funds. A marital agreement is the appropriate tool for the contract. In addition, a gift that is made during a wedding can also be treated in a prenup agreement. In England, in Radmacher/Granatino, the Supreme Court upheld the Court of Appeal`s decision and found that it was natural to conclude that the parties who entered into a marriage agreement to which English law is likely to apply found that agreement binding. [v] However, the Court has a preponderant margin of appreciation when it takes into account the weight to be attached to marriage contracts. In this case, the Supreme Court set out the following factors that courts should consider in determining the financial obligations of parties to a marriage agreement: – The direct case confers legal value on marital cases in which the parties challenge the validity of existing post-marriage agreements. The South African Constitutional Court has recognized that spouses are free to enter into contracts that deny the terms of premarital agreements. It also indicated that a party had to prove that a divorce was a factor in the conclusion of the agreement for such agreements to be valid after the marriage. The development of marriage contracts requires careful consideration, careful drafting, full disclosure and good independent legal service for each interested party, so that it is not possible for an agreement to be annulled for coercion, coercion, fraud, the conditions being manifestly unfair or a party has not understood the consequences of concluding such an agreement. Marriage agreements are effective in protecting certain assets, whether acquired before or after marriage, from the separation of a couple after divorce. For example, a shareholder who owns a business with his father and siblings could exclude his participation from the assets against which his future wife could sue in the divorce proceedings. This would protect the family business from the final possession of a bitter former spouse.
Despite this protected recognition of marriage contracts in practice; The legal recognition of such agreements, both in the English common law and in the codification by legislation, has evolved only slowly in recent years, with few pioneering decisions and orders. However, it was only with the passage of the law in Kenya that marriage agreements were officially recognized. The law came into force on January 16, 2014 and repealed the 1882 Law on Married Women`s Property, which does not provide for marriage contracts. Its main objective is to guarantee the rights and obligations of the spouses with respect to matrimonial property and related purposes. Article 6, paragraph 3 of the Act provides that parties to a proposed marriage may enter into an agreement on their property rights prior to their marriage. In MBK/MB (2016) eKLR, the court had to ascertain whether an apartment purchased by the accused prior to marriage was part of the marital property. The marriage had only two clauses and provided, among other things, that any property acquired by one of the parties prior to his or her proposed marriage would belong to that party after the marriage. Since there is no evidence that the parties agreed that the dwelling would be part of the matrimonial property, it has emerged that the property belongs exclusively to the defendant.
Before entering into a marriage agreement, it is important that each party can obtain independent legal advice. Independent legal assistance will destabilize both parties in the sense that a person is fully aware of the terms of the agreement and therefore freely enters into the agreement, particularly if warnings have been issued at a preliminary stage.