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.
[8] A.G. Karibi – Whyte, “Succession Rights of Women in
Nigeria Law”, Law and Family. Enugu 1994.p23.
[11]
1. IFEMEJE,
Op.cit. 157
