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

Daily Nation (Kenya) - - FRONT PAGE - BY ELVIS ONDIEKI [email protected]­tion­media.com

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.

‘Com­mu­nity prop­erty’

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.

Peace­ful sepa­ra­tion

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.

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