Would you sign a property pact before marriage?
The idea that the world’s richest man is likely to split his wealth right down the middle has brought to the fore the idea of prenuptial agreements
After the world’s richest man announced his divorce, opinion is divided on whether a couple should sign a prenuptial agreement or not. Lawyers, though, say lovebirds should agree on how property will be shared upon splitting
Wednesday’s announcement by Jeff and Mckenzie Bezos that they will be ending their 25-year marriage has drawn all manner of interest in the world’s richest man, with Google data indicating that the name “Jeff Bezos” was the fourth most-searched keyword in Kenya that day.
Mr Bezos, 54, is the founder and chief executive officer of Amazon, the world’s biggest online retail business.
His net worth is estimated at $137 billion, which translates to Sh13.94 trillion, four times the budget of Kenya during this financial year.
After the news of his divorce from his wife — a 48-year-old novelist he first met in the early 1990s while interviewing her — the emerging discussion was whether he will remain the wealthiest person alive as he is likely to share a large portion of wealth with his ex-wife.
The Washington Post, a publication Mr Bezos bought in 2013, quoted American divorce lawyer Sandy Ain saying that Washington State, where the two reside, is a “community property” area, meaning that all assets and debts accumulated during a marriage are divided equally.
“Because Bezos is the richest person in the world, a 50-50 agreement would result in the biggest recorded divorce settlement,” said the publication.
Mr Ain went further to suggest that the Bezos couple might have a prenuptial agreement (signed before a wedding) or even a postnuptial agreement (entered after).
“And even if the couple winds up splitting the fortune — a move that could knock Mr Bezos off the top of the richest list — Ain notes that that merely means the couple will each occupy one slot, just further down the ranking,” Washington Post noted.
Besides Amazon and Washington Post, Mr Bezos owns Blue Origin, a company offering travel services to space for paying customers.
BBC reported last year that Blue Origin would start selling tickets to those who plan to travel to space from this year.
The prospect of the world’s richest man shedding a considerable chunk of his empire after divorce is drawing attention to prenuptial agreements that couples sign to specify who will take what when they part ways.
Strong place in law
In Kenya, such agreements did not have a strong place in law until 2010 when the current Constitution came into force, according to family lawyer Simon Karita.
“Before the 2010 Constitution, the courts used to be guided by case law, that is the decisions of other courts,” he said.
“But now, Section 45 of Constitution gives room for prenuptials. It states that parties to a marriage are entitled to equal rights at the time of the marriage, during the subsistence of the marriage and at dissolution of the marriage,” he added.
To operationalise the section of the Constitution, Kenyan lawmakers passed the Matrimonial Property Act five years ago, and the legislation gave pre-nuptial agreements a solid space in Kenyan law.
Mr Karita said signing such an agreement makes divorce easy when the time comes to go separate ways.
“It makes the divorce proceedings to be very easy. Actually, that’s one of the advantages of a pre-nuptial agreement because it supersedes any other form that is to be applied in the distribution of the property,” he said.
“In the absence of a prenup, courts use the normal way of subdividing the property. But once you have a pre-nuptial agreement, it indicates the rights and duties and who is to have what. So, the courts adopt it to be a consent order. That just ends there,” added Mr Karita, noting that he has helped draft a number of pre-nuptial agreements in the Coastal region where he operates.
Famed family lawyer Judy Thongori says she always encourages couples starting marriage to sign an agreement on how they will share property after separation.
“If I could, I would recommend it for all marriages. It’s like a will. It causes you no harm at all to pre-determine what you would like with respect to your property. I would recommend it for all marriages. I think it is a good thing to be real. We haven’t been real,” said Ms Thongori.
“When I speak to young men and women, they tell me, ‘Judy, doesn’t that mean that I don’t trust the other person?’ I say, ‘Not at all. It means you trust the other person to be human when conflict arises and you trust yourself to be human,’” she added.
The human thing in the event of separation, Ms Thongori said, is the urge to pull to one’s side.
“When you see that your marriage is going nowhere, what do you do? You try to pull to your side, isn’t it?” She posed. “You are going to say, ‘How can I bring this over to myself ? How can I hog?’ That’s a normal thing.”
The lawyer advised couples to enter pre-nuptial agreements under the guidance of certified oath commissioners as courts can scoff at ill-prepared documents.
“It is important for that agreement to be done openly, without fraud. You must not coerce your partner and it must not be manifestly unjust. Because if it is any of those things, then the court can interfere with it,” she said.
Ms Thongori could not put a figure to the number of pre-nuptial agreements she has presided over, only admitting that “they are increasing”.
“It’s very encouraging for me to have people wishing to take advantage of the recent provision in the law on prenuptials. It tells me that they have thought through what a lot of people don’t dare to, to think about disputes; because disputes happen to human beings,” she said.
One common trend she has observed in the signing of pre-nuptial deals is the fact that people marrying for the second time are more likely to enter such agreements.
“Through a first marriage, many people learn. So, they are more likely to seek it in their second marriage. So, we are telling the people getting into their first marriage, ‘Don’t wait to experience it. Do the right thing,’” said Ms Thongori.
“And it’s OK if you intend that what you have is hers and what’s hers is yours. It’s OK; put it down,” she added.
From the Mr Bezos divorce, legal minds think the two will sort their property division amicably, as was hinted in a message announcing the end of the marriage.
“We see wonderful futures ahead as parents, friends, partners in ventures and projects, and as individuals pursuing ventures and adventures. Though the labels might be different, we remain a family, and we remain cherished friends,” read part of their statement.
Washington Post’s reporting of the separation highlighted the prospects of a peaceful separation.
“[It] sounds like they are making an effort to do this the right way and not make it into a public spectacle,” they quoted a lawyer saying.
The United States, the home country of Mr Bezos, is known for dramatic and expensive separations.
One of the famous individuals on the topic of pre-nuptial agreements is American president Donald Trump, who lost a minute part of his empire when he divorced Marla Maples in 1999.
As per a pre-nuptial deal before they married in 1993, she took home $2 million from Mr Trump who was worth at least $5 billion at the time.
Other couples whose pre-nuptial deals became public after going separate ways include actors Brad Pitt and Angelina Jolie.
There is also comedian Chris Rock and Ms Malaak Compton whose pre-nuptial made the news because at the time they were divorcing, it had expired as it had lasted more than 20 years.
Amazon founder Jeff Bezos (right) and wife Mackenzie Bezos. The couple has announced their impending divorce, capturing global attention with speculation on how their massive wealth will be divided. Should they decide to split 50-50, the divorce settlement will be the biggest recorded.