“Stick to the Deal” – The Binding Nature of Divorce Settlement Agreements

“Stick to the Deal” – The Binding Nature of Divorce Settlement Agreements: The Case of JJM v JLM [2025] KEHC 15576 (KLR)

1. INTRODUCTION

This case reaffirms a key principle in Kenyan family law:

A matrimonial settlement agreement voluntarily executed by spouses is binding, and courts will not reopen the distribution of matrimonial property unless vitiating factors are proved.

The decision emphasizes contractual certainty in divorce settlement agreements and protects parties from attempts to renegotiate after benefiting from the agreement.

2. FACTUAL BACKGROUND

• The parties married in 1980 and remained together for over 40 years.
• Their marriage was dissolved on 29 November 2024 via a Decree Absolute.
• During their marriage they acquired:
• A Ngong property (registered in the husband's name).
• Two parcels in Ndalu/Kipchonge Block (later transferred to their adult son).
• A Lenana View Apartment (B4)—allegedly bought using funds sent by the husband from Namibia.

The Settlement Agreement

On 4 November 2017, the parties executed a Divorce and Settlement Agreement (DSA) to determine ownership and distribution of their matrimonial assets.

Dispute

• In 2018, the husband sent an email to their adult son attempting to “rescind” the settlement agreement, claiming it was skewed in favour of the wife.
• He later filed an Originating Summons (2021) asking the Court to disregard the DSA and redistribute property based on “contribution.”
• He also withdrew any claim to the two parcels transferred to their son, leaving the Ngong property as the main contested asset.

3. ISSUES FOR DETERMINATION

1. Whether the Divorce and Settlement Agreement (DSA) is valid and enforceable.
2. Whether the Court should disregard the DSA and redistribute matrimonial property based on contribution under the Matrimonial Property Act.
3. Whether the husband’s unilateral attempt to rescind the DSA was legally effective.
4. Costs of the suit.

4. COURT’S HOLDING

1. The Settlement Agreement is Valid and Binding

The Court held that the DSA executed by both spouses is a legally binding contract, enforceable under contract law, even though the Matrimonial Property Act expressly mentions only pre-nuptial agreements.

2. No Legal Grounds to Invalidate the Agreement

The husband failed to prove any vitiating factors such as:

• Fraud
• Duress
• Coercion
• Undue influence
• Misrepresentation
• Manifest injustice

His reason—that the agreement was skewed—did not meet the legal threshold.

3. Unilateral Rescission by Email Was Ineffective

The email to the couple’s son did not constitute lawful cancellation.
Rescission of a contract requires:

• Communication between the contracting parties, and
• Mutual consent or court intervention.

4. Estoppel: Husband Approbated the Contract

He benefitted from the DSA by:

• Selling the Lenana apartment in accordance with the agreement;
• Receiving and using the proceeds;
• Buying another property with the proceeds.

Having enjoyed the benefits, he could not later repudiate the agreement.

5. Originating Summons Dismissed

The Court declined to reopen distribution of the Ngong property.
The DSA governs all issues of matrimonial property.

Each party was ordered to bear their own costs.

5. COURT’S REASONING

a) Settlement Agreements Are Enforceable

Although the Matrimonial Property Act is silent on post-nuptial agreements, courts rely on:

• The law of contract,
• The principle of party autonomy, and
• Public interest in finality of disputes.

b) Vitiating Factors Must Be Pleaded and Proved

Courts will not set aside a settlement simply because a party later regrets signing it.

c) Equity Will Not Help a Party Acting in Bad Faith

The husband:

• Accepted the DSA,
• Benefited from it,
• Later attempted to change his mind.

This violates the principle that a party cannot “approbate and reprobate”—accept and then reject the same instrument.

d) DSAs Reduce Litigation and Promote Certainty

They encourage amicable settlement and reduce re-litigation of matrimonial disputes.

6. LEGAL PRINCIPLES ESTABLISHED

1. Divorce Settlement Agreements (DSAs) are binding under contract law, even if not expressly provided for in statute.
2. Courts will not revisit contribution analysis where a binding DSA exists.
3. A DSA can only be set aside if vitiating factors are proven.
4. Parties who benefit from a DSA are estopped from later challenging its validity.
5. Unilateral cancellation of a matrimonial settlement is invalid.
6. The principle of finality of settlement agreements is central in post-divorce property disputes.

7. PRACTICAL IMPLICATIONS & LEGAL ADVICE

A. For clients entering settlement agreements

• Ensure the terms are fair, clear, and fully understood before signing.
• Obtain independent legal advice.
• Document all negotiations and communications.
• Ensure all parties sign voluntarily and without pressure.
• Remember: once executed and acted upon, a DSA is very difficult to set aside.

B. For clients seeking to challenge a settlement

A challenge is only viable where there is strong evidence of:

• Fraud or forgery
• Undue influence or coercion
• Threats or duress
• Material misrepresentation
• Gross unfairness amounting to manifest injustice

Mere dissatisfaction or hindsight regret is insufficient.

C. For lawyers drafting DSAs

• Include clauses on variation, rescission, and dispute resolution.
• Ensure the agreement covers all assets (real and personal).
• Ensure proper witnessing and execution.
• Advise clients on consequences of non-compliance.

D. For ongoing or future matrimonial property disputes

• A DSA will generally override contribution arguments.
• Courts favour finality and will avoid reopening concluded agreements.

8. CONCLUSION

JJM v JLM [2025] KEHC 15576 reaffirms that:

When spouses freely execute a divorce settlement agreement, they are bound by it. Courts will enforce the agreement and will not assist a party seeking to escape its consequences after enjoying its benefits.

This case strengthens contractual certainty in family law and underscores the importance of carefully negotiating and drafting settlement agreements.