Sep 5, 2019

Enforcing Prenuptial Agreements In Nigeria | Adeniran Bukunmi


1.0    INTRODUCTION.
Around the world there has been a growing trend for intending couples to enter into prenuptial agreements in order to secure their financial interests in the event of divorce. It is believed in many quarters that a woman can avoid great heartache  in her oncoming marriage, if she agrees to sign a carefully considered prenuptial agreement, that guards her right before entering into wed lock.
The above view is likely informed by the fact that the law on the division of property on divorce of many countries of the world is highly discretionary and sometimes discriminatory. In most countries, the courts are often vested with wide arbitrary powers. There are no fixed yardsticks or clear- cut criteria that would guide the courts in the sharing of property in the event of divorce.[1]

This article discusses prenuptial agreements, its validity under the Nigerian law, the reluctance of enforcement of prenuptial agreements in Nigeria and How prenuptial agreements can be enforced.



2.0    WHAT ARE PRENUPS?.

Prenuptial Agreements, popularly abbreviated as prenups, are premarital agreements made prior to formalities of marriage by couples,  setting out the terms of ownership of assets acquired before and after marriage. Prenuptial Agreements stipulate how finances are settled and how funds are to be distributed in the course of marriage and more importantly, in the event of a Divorce. Commonly, it includes provisions of Division of property and spousal support in the event of separation and may also include forfeiture of assets as a result of divorce on the grounds of infidelity. Not only do prenups address the financial compensatory aspects of marriage, prenups also cover other matters like payment of taxes, debts, living expenses, among others. Prenups are usually meant to protect the best interests of both spouses.

Basically, prenups are contractual agreements. In Bilante International Ltd. v. NDIC[2], the Supreme Court held that “a binding contract must contain the basic elements of offer, acceptance, consideration and capacity to contract or intention to create legal relationship.” Since their terms satisfy these requirements, the typical prenup is to all intents and purposes, a formal contract.[3]



3.0    EXAMINING THE ENFORCEABILITY/RECOGNITION OF PRENUPS IN NIGERIA.

Prenups have existed for thousands of years in one form or another particularly in European, Asian and Far Eastern cultures, especially among royal families. Pre-nuptial agreements have been in existence even before the Common law came into being. In fact, the Jewish marriage contract known as ‘Ketubah’ dates back to at least 2, 000 years.[4] In France, history has it that the customary pre-nuptial contract derives from the dowry, first recorded in the ninth century.  At common law, premarital agreements regulating financial rights and obligations of spouses during their marriage were fully enforceable.

In Nigeria, the conceptualization of prenuptial agreements is relatively new for reasons of cultural and religious beliefs. It is simply not a traditional or cultural thing for Africans to divorce, hence, the lack of need for prenups. Marriages are to last till death do the couple part. As a result, African countries, have shunned recognition and failed to consider enforcement of pre-nuptial agreements; the use of prenuptial agreements has been stigmatized in Africa. All efforts are usually made to calm turbulent marriages, however, these efforts are not always successful as divorces and separation are still a fact of life in our society today.

Contrary to general presumptions, a prenup does not necessarily encourage or promote divorces. A prenup lays out what would happen if the marriage unexpectedly comes to an end. To some, by anticipating divorce, you already have 'one foot out the door'. Howbeit, thousands of happily married couples with prenuptial agreements would disagree. Prenups are similar to insurance policies; hopefully, one never needs them, but if one does, all uncertainties would have been legally taken care of.

There is also the view that negotiating a prenup leads to conflict even before the marriage;  starting a relationship with a contract that sets out the particulars of what will happen upon divorce can beget a sense of lack of trust or long term commitment. Also logical as this seems, a sincere communication about finance before marriage, which a prenup symbolizes has proven to improve the quality of relationships and set the foundation for good communication in marriage.

It is imperative to state at this juncture that under Nigerian law, Prenups are generally valid. If it were not so, The Court of Appeal would not have indirectly pronounced on the validity of prenuptial agreements, when it ruled in Oghoyone v Oghoyone[5]. The court of Appeal held, in this case, that the trial court was right in its decision that the respondent had a joint interest in a property belonging to the parties although it was not referred to in their prenuptial agreement. Agreeably, Prenuptial agreements are recognized in the Nigerian jurisprudence.



4.0    THE IMPORTANCE OF PRENUPS: WHY PRENUPS SHOULD BE ENFORCED.

There is a necessity for clear legal basis for prenups in Nigeria. Unlike many jurisdictions where state laws clearly define property rights in marriage and upon divorce, the Nigerian legal framework is vague. Currently, there is  no law in Nigeria, which lays out the process and procedure for how prenups should be created. The final decision on the settlement of assets and property upon dissolution of a marriage rests with the Judge. It is in instances of this nature that the judge becomes the law.

As opposed to the Nigerian customary system where men are legally allowed to marry more than one wife, under the Marriage Act (MA) and Matrimonial Causes Act (MCA), one cannot validly contract a subsequent marriage. Nonetheless, in instances of such marriages, a prenuptial agreement will help protect the inheritance rights of children from the  previous marriage.

Section 72(2) of the Matrimonial Causes Act, the law states that:



the court may…make such order as the court considers just and equitable with respect to the application for the benefit of all or any of the   parties to, and the children of, the marriage of the whole or part of property dealt with by   ante‐nuptial or post‐nuptial settlements on the parties to the marriage, or either of them”.



Pursuant to this proviso, the courts have the discretionary power to allocate finances and  settle property at the instance and for the benefit of the parties and the children of such marriages. This leaves a wide room for discretion which could for example, be often exercised to the detriment of women. There are no laid down criteria, or yardstick that guide the exercise of this discretionary powers of the Court, the decision of the court depends largely on the whims and caprices of the presiding judge, who may decide to tilt in favor of one side or the other.

The case of  Nwanya v. Nwanya[6] and Shodipo v Shodipo[7] brought to the fore, the level of marginalization and discrimination which Nigerian women often have to contend with, in the sharing of marital property in Nigeria. In Nwanya’s case, due to lack of evidence to support the claim of  the wife that she contributed N6, 000 to build their matrimonial home which was in her husband's name, the court dismissed the claim. This is not exactly astonishing as the African culture has been roundly criticized as very ‘‘illiberal towards women’s rights’’.[8]

Arguably, the judicial attitude in Nigeria has done injustice in many cases contrary to the intention in section 72 of the Matrimonial Causes Act. Thus, a prenup will address the lack of clarity of Nigerian law on settlement of property in the event of separation or divorce. Seeing as the  court  is mandated to  take the terms of the prenuptial agreement into consideration,  a prenuptial agreement will better assist the court in attaining a decision that is “just and equitable” pursuant to the foregoing section. However, such agreement must not attempt to oust or control the jurisdiction of the court as it will be considered contrary to public policy and probably ignored.

Agreeably, there is little or no case law or court rules guiding prenuptial agreements in Nigeria and the only statutory criteria is that it is fair and equitable. English law retains a strong influence on  judicial decisions in Nigeria and it would be good practice to conform to the criteria established in England.

In Radmacher v. Granatino[9], the United Kingdom Supreme Court upheld a prenup which protected a woman's £106m fortune. The husband, a French investment banker, married a very wealthy German national. Prior to the marriage, at the request of the wife's family, a prenuptial agreement was signed by both parties. The agreement provided that each party forgo any interest or benefit from the other's property acquired either before or during the marriage. The husband and wife had two children but divorced after nine years and the husband claimed ancillary relief against the wife's assets. The husband contended that he should not be bound by the terms of the agreement because he was nowhere near as wealthy as the wife, and he had not sought independent legal advice. He argued prenuptial agreements are contrary to public policy pursuant to MacLeod v MacLeod[10]. The wife argued that there was no legislation prohibiting such agreements, and parties should be free to agree between themselves how their assets are to be held, that the husband having entered into the prenup, of his own free will, should be bound by its terms. The Court ruled in favor of the wife to the effect that if prenups are freely entered into, pursuant to all relevant information available to both parties, and in the absence of pressure, such agreements should be upheld, unless it would be unfair to do so.



5.0    RECOMMENDATIONS: THE WAY FORWARD.

It is hoped that the countries that are yet to accept the enforcement of pre-nuptial agreement should be inspired by countries like, Canada, America Australia, Netherlands, among others, which already have a long established practice of enforcing prenuptial agreements. In view also, of the fact that people now travel and live across borders and expect their prenuptial agreement to be accorded legal recognition in any country of the world in which they may wish to settle down, there is a need for a worldwide legal recognition of prenuptial agreements. Additionally, our laws should be more forward looking. Prenuptial agreements, contrary to popular belief, do not destroy the romance of an oncoming marriage, rather, prenuptial agreements afford the couples the opportunity to share their thoughts, opinions, desires, hopes and dreams, and articulate their aspiration. A relationship based on reality is definitely stronger than one built on illusion. Even, the former English Parliamentarian Secretary, as far back as 1998, gave a boost to prenuptial agreements when he conceded that there are “significant advantages” to legally binding prenuptial contracts.[11]



6.0    CONCLUSION.

In conclusion, despite the most positive expectations, marriages suffer setbacks with some ending in divorce; hence, the necessity for parties to make adequate arrangements to protect themselves through prenups. Although there are only a few or no case laws guiding prenups in Nigeria, they are common in other jurisdictions. It is worth reiterating that prenups are legally binding contracts between married couples. Given the spate of separation, it is prescient for our laws to begin to take cognizance of these agreements and encourage intending or married couples to take steps to have prenuptial or postnuptial contracts in place. That way, the time and resources expended by parties in contentious divorce proceedings regarding property settlement would be minimized. All that the courts now have to do is just to enforce the terms which the parties themselves agreed upon in the absence of fraud, duress and undue influence or risk the manifestation of injustice.



Adeniran Bukunmi

Gani Fawehinmi Students Chambers

Faculty of Law

University of Lagos



[1] IFEMEJE: “A Case for Global Enforceable Prenuptial Agreements”
[2] [2011]15 NWLR (Pt. 1270), 407 at 423.
[3] “Prenuptial Agreements: Tidying Up Before Tying The Knot?” by Afolabi Elebiju & Okemute O. Erumevba, July 2018.
[4] https://www.schulefandlawoffice.com/blog/2018/03/the-long-and-strange-history-of-prenuptial-agreements.shtml
[5] (2010) 3 NWLR (Pt. 1182) 564.
[6] [1987] 3 NWLR (Pt.62) 697.
[7] [1990] 5WRN 98.
[8] A.G. Karibi – Whyte, “Succession Rights of Women in Nigeria Law”, Law and Family. Enugu 1994.p23.
[9] [2010] UKSC 42.
[10] [2010] 1 AC 298.
[11] 1. IFEMEJE, Op.cit. 157
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