Pre-Nuptial Agreements Under Nigerian Law

What is a Pre-Nuptial Agreement?

A prenuptial agreement (“prenup” for short), as the name implies, is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) before the marriage and specifies what each person’s property rights will be in the event of termination or cessation of the marriage, by death or divorce.

It may also be called an “ante-nuptial agreement” (as is the case in Nigeria), or in more modern terms, a “premarital agreement.

Similar to a pre-nup is a postnup, which is an agreement made during marriage, rather than before.

Are Prenups recognized and enforceable in Nigeria?

Section 72 of the Matrimonial Causes Act deals with the powers of the court with respect to settlement of property. It provides in Subsection 2 that in cases of settlement of property for the benefit of the spouses or the children of the marriage, the court will consider any property that is dealt with by ante-nuptial or post-nuptial settlement. This points to the fact that our legal jurisprudence, recognizes and does not frown at prenups or post nups, and would in fact, enforce them in considering settlement of property between spouses.

It however remains unpopular in Nigeria today. Some are of the opinion that it is very unromantic. Many hold the view that entering into prenups is a sign of questionable affection between the parties. Others think that an intending couple who sign a pre-nup are bound to have a doomed marriage, since from the onset they are entering the marriage with a view or a plan in place for terminating their marriage at a later time.

These agreements can save a lot of heartache, not to mention money, in the event of divorce or death. When a couple decides to split, prenups can prevent nasty, drawn-out, excessively expensive court battles, which would inadvertently further the degeneration in their relationship, which can be highly disadvantageous, especially if there are children to consider.

Are there limits to the enforceability of Prenups in Nigeria?

Even though our law will enforce pre-nups or post-nups, there are qualifications. As the law currently stands, prenups aren’t automatically binding. The law in the already mentioned Sec 72(2), provides that in considering such agreements, the court will only enforce them where the terms are, by the consideration of the court, fair and equitable.

This therefore means that where any of the terms are, or where the consequences of strictly following the prenup would be unjust, unfair and contrary to natural justice, equity and good conscience, the court will not strictly follow it, but will instead make variations to the contract and do what it considers fair and just in the circumstance.

What would be considered ‘fair and just’ will be determined by the circumstances at the time of the divorce/death. The outcome has to be fair and just, not just to both parties, but especially to any children of the marriage.

Who Needs a Prenup?

Not only wealthy people need prenups. Considering that prenups are of wide array of advantages, it is advised that anyone entering into marriage with any substantial wealth, investment, portfolio, should have a prenup or postnup.
Some of the advantages that nuptial agreements provide are:

A marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary.

Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the kids.

Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.

It also allows parties avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, whether they have children or not.

In order for prenups to be binding and enforceable, there are (as with other kinds of contract) certain criteria that must be met.

There must be fairness and full disclosure. Each party is required to be represented by an attorney, who will ensure that the terms are fair to their client and that the parties are only acceding to what they know and fully understand. It must be clear that neither party entered into the contract under undue influence or duress.

Due to the fact that what is “fair and just” which will be judged at the time of the breakdown of the marriage, prenup reviews are important to reconsider the position, if there are any changes in circumstances, for example, children are born. It must be stated that prenuptial agreements cannot provide for or limit child maintenance, or support or rights related to children. Courts and laws do not let couples bargain away the rights of their children.

Pre-nups should also be entered into in advance of the wedding, to give both parties sufficient time to consider and reflect on the terms of the agreement.

One of the major reasons that prenups are favourably considered is the fact that with prenups, premarital assets are usually off limits. Prenups often state that any assets brought into the marriage remain that person’s separate property.

A prenup could also state that any assets the couple earned during the marriage are marital property subject to division, in a manner that would be agreed between them.

Any future for prenups in Nigeria?

This is quite an undeveloped aspect of our jurisprudence, as we do not see many people use or consider prenups when entering into marital relations. Consequently, there is also not much development in the way of judicial precedents or direction in this area. It remains to be seen what the attitudes of the Court would be in enforcing prenups and post nups, to see what the direction of our laws would be in this regard.