A prenuptial agreement, antenuptial agreement, or premarital agreement (commonly referred to as a prenup), is a written contract entered into by a couple prior to marriage contraction or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce.
However, it's crucial that you establish the difference between a prenuptial and postnuptial agreement, whereas we have defined the former in the opening paragraph, the latter is similar to prenuptial agreements, except that they are entered into after a couple is married. When divorce is imminent, postnuptial agreements are referred to as separation agreements
Luckily, you've come to the right place. This article will provide some basic information about prenups including how prenuptial agreements are entered into and by whom. In this article, you can also find out about the rights acquired and remedies available in case of separation by divorce or death.
Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony (spousal support) with agreed-upon terms that provide certainty and clarify their marital rights.
This premarital agreement may also contain waivers of a surviving spouse's right to claim in what is known as an elective share of the estate of the deceased spouse.
In some countries, including Kenya, South Africa, and Nigeria, the prenuptial agreement not only provides for what happens in the event of a divorce or death but also protects some property during the marriage, for instance in case of bankruptcy.
WHO MAY NEED A PRENUP
Contrary to popular opinion countrywide and across Africa, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes. Here we bring you some reasons why some people should consider contracting a prenup prior to marriage:
Pass separate property to children from prior marriages. A married couple with children from prior marriages may find it conducive to use a prenup to spell out what will happen to their property when they die so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.
Clarify financial rights. Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.
Avoid arguments in case of divorce. Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony. (A few African countries won't allow a spouse to give up the right to alimony, however, and, in most others, a waiver of alimony will be scrutinized heavily and won't be enforced if the spouse who is giving up alimony didn't have a lawyer.)
It's important that we acknowledge that the law on prenups has not taken a clear shape.
We shall keep updating this article from time to time.