A prenuptial agreement (PNA(s) or Prenup(s)), is a written contract entered into by a couple prior to marriage, that sets out how their assets or finances will be organized or managed in the event of a dissolution of their marriage or death.
In many jurisdictions around the world, PNAs are quite common and regulated by law. This is in stark contrast to jurisdictions such as Tanzania, which does not have specific legislative provisions that authorize or uphold such agreements.
In jurisdictions where PNAs are used, they are taken as a normal contractual practice before solemnizing a marriage, with a view of establishing property and financial rights of each spouse in the event of a divorce. So, while a majority of potential couples may not be thinking about divorce when entering a marriage, still, there will always be those who will end up getting divorced at some point in time. It is therefore prudent to consider a PNA if laws permit.
Since times have changed, the essence of PNAs is essentially to ring fence the assets of a wealthier spouse in the event of a divorce. Further, a PNA is intended to protect family businesses and inheritances. Even though in Tanzania, such a position would be repugnant to our culture and norms, many people entering the marriage institution with the fortitude to consider what would happen if anything goes wrong, should consider entering into these agreements, especially if one has substantial assets.
As pointed above, PNAs do not have any specific recognition in Tanzania. However, one may strongly argue that the Constitution of the United Republic of Tanzania of 1977, Chapter 2, Revised Edition 2002, of the laws of Tanzania, as amended or revised from time to time (the “Constitution”), does recognize through Article 24 – the right to own property and the right to property protection in accordance with the law. This, in our opinion, is the whole purpose why, a PNA, should be considered to protect this basic constitutional right.
Therefore, on the basis of Article 24 of the Constitution, one may enter into a PNA provided that it does not conflict with any other law or regulation applicable in Tanzania. For instance, the Law of Marriage, Chapter 29, Revised Edition 2019, of the laws of Tanzania (the “LMA”), which makes provisions relating to marriage, personal and property rights as between husband and wife, separation, divorce and other matrimonial reliefs and other matters connected therewith and incidental thereto.
One such relevant provision in the LMA which may affect the validity or otherwise of a PNA is found under Section 114. This section empowers the Court (being the courts established under Section 76 of the LMA, that is, the High Court of Tanzania, Resident Magistrate’s Court, District Court and the Primary Court) to divide matrimonial assets of a married couple when dissolving a marriage.
This means that irrespective of the terms and conditions of a PNA, the courts may still negate the parties’ desires and order a division of assets as it deems fit, based on circumstances before it.
Section 114 of the LMA reads as follows: -
Section 114 - Division of Assets and Maintenance as between Husband and Wife
(1) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale.
In order to exercise the power conferred by subsection (1) cited above, the court shall have regard to; (a) the custom of the community to which the parties belong; (b) the extent of the contributions made by each party money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division.
Further, references to assets acquired during a marriage, include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.
It should be clearly noted that, any asset intended to be ring fenced under the terms of a PNA, must not be, (a) matrimonial assets, (b) assets acquired by the parties during the marriage by their joint efforts, and (c) if there are assets which were owned before marriage by one party, then, no substantial improvement must have occurred during the marriage by the other party.
We should emphasize at this juncture that, any person intending to draft a PNA, must do so with the knowledge that this is not an ordinary contract, which anyone can draft. Therefore, before entering into a Prenup, it is important that each party seeks expert legal guidance. This will aid in establishing that an individual was fully aware of the terms of the agreement, and therefore, freely entered into it.
In addition, lawyers who draft these agreements, must also be careful when doing so, to avoid exposing their clients against a possible invalidation of such agreements, when they are brought under scrutiny of the court.
This now leads us to what should parties and their respective legal advisers look for when drafting a PNA?
In view of the position of the LMA and the jurisprudence, potential couples intending to enter into a PNA should consider the following points, among others, namely: - (a) the parties should make full and honest disclosures of all their assets, including those that they intend to exclude under a PNA, (b) parties should freely enter in the agreement and they should not be influenced by fraud or coercion, (c) parties must have full appreciation of the implications of a PNA, (d) only assets which were acquired before marriage and are not by their joint efforts qualify, and, (e) the assets owned before marriage by one party and which have been substantially improved during the marriage by the other party or by their joint efforts do not qualify under a Prenup.
In summing up, we must disclose that, despite our thorough due diligence, we have not come across any court decision in Tanzania which expounds on this subject, that is, the validity/enforceability of a PNA. In that regard, our opinion above is based on the law and jurisprudence we have reviewed. We nonetheless, look forward to PNAs gaining official recognition in light of the current on-going efforts to enact a successor legislation to the LMA.
Note: This is not a legal opinion and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.
