Practical and Legal Reasons for Pre-Nuptial Agreement in Nigeria – Elvis E. Asia

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Introduction

A pre-nuptial agreement (“prenup”), also known as ‘pre-marital agreement’, is a contract between a prospective husband and wife, which sets out the terms of ownership of assets acquired before and after the marriage and determines how earnings during the subsistence of the marriage will be treated and the settlement of property in the event of separation or divorce. The agreement would usually deal with the consensus of the parties on issues like debts, entitlement to retirement plans and accounts, separate and joint property, living expenses, gifts, separation and divorce, rights of parties to property in the event of death, child support/maintenance, etc.

Until recent times, the idea of a prenup was alien to Nigeria. This is because marriage was (and still largely is) considered a sacred institution created by God and initiated by love and any attempt to imply its contractual nature as evidenced in the signing of prenup (as done in “foreign lands’) was abominable. In fact, it can safely be said that people blindly entered into marriages, without discussions on crucial issues like property and finance.

One major reason for this is the magnified position of the man as the natural ‘bread winner of the family with a duty to provide for his wife and children[1]. Many women were full-time housewives. However, times have changed. Women now work and own properties like men. It is not then, uncommon to find men looking to marry women that can ‘take care of them’ these days.

Another reason was that divorce was not common because of the place of family, deep-rooted traditions and religion that held couples bound to unhealthy and sometimes, life-threatening marriages and relationships. Today, these factors’ hold on marriages has lessened. In various courts in Nigeria today, it is no longer strange to see people seeking the dissolution of marriages aged only a few months or a few years, with unbelievable tales of marital difficulties.

In Defence of Prenup

Divorce has become a feature of our society; the bases for the unpopular nature of prenup in Nigeria no longer exist.  There are many reasons why you should consider a prenuptial agreement before marriage or at least have a clear discussion on issues dealing with property and finance.

We have to admit that love is a nebulous concept and can be fleeting. The reality is that the emotional basis for entering into a marriage in the first place may wane. More importantly, the so-called love may have been influenced by other considerations. In such circumstances, a prenup may be the best way to be sure that the ‘love’ is not for the wrong reasons.

Having a prenup can protect each spouse’s separate property, support estate planning, set definition for key terms like ‘private property’, ‘marital property’ etc, clarify special agreements between parties and establish procedures and ground rules for deciding future financial matters.

Failure to consider a prenup is potentially costly and may be ultimately damaging in the event of a divorce. This is taking into consideration, the cost of litigation, the ‘bad blood’ generated during the trial, press exposure leading to career and other relationship threats or destruction, effect on children and so on. Whereas, a prenup, with the specific inclusion of ‘property settlement mechanism’ and ‘confidentiality’ terms and provisions, would drastically reduce the likelihood of conflicts, save money and protect each spouse.

Today, unlike the times of our fathers, people are having second and subsequent statutory marriages. In such circumstances, a prenup will protect the inheritance rights of children from a previous marriage. Parents can also use prenup to protect their children’s fortune by making sure that the children sign the agreement before marriage. No parent would want his/her life’s work to go to someone who may have deceived his/her child with talks of love. In Radmacher v Granatino[2], the United Kingdom’s Supreme Court upheld a prenup which protected a woman’s £106m fortune.

There is also widespread spousal disappointment these days,-although men are said to be the usual culprits. It has been postulated in some quarters that women are significantly more than men and as a result women find it difficult to find life partners and men are steadily ‘breaking hearts’. Research however contradicts this number evaluation[3]. The alleged difficulty in women finding life partners is more likely because women now marry late because of education and career pursuits. Men also marry late because of the enormous financial expectations the society places on them. Will it be fair to finally cross these hurdles but still go through an emotional roller-coaster in the event of a divorce?

Furthermore, we may not want to admit it; the dynamics of marriage has changed drastically. One can only imagine what it would be 20, 30 or 50 years from now. The truth is that young people do not regard marriage the way their parents did.  This is because there is less motivation to marry and stay married today.  People no longer need to marry to have food on their table, have sex and children, transfer property or feel fulfilled and accommodated in the society. These reasons used to be the driving force behind societal push for marriage and protection of the institution. The change in the ‘gains’ of marriage and the way it is viewed necessarily require more circumspection in contracting it.

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The issue of spousal support or maintenance is relevant in a prenup. There is a misconception that only a woman is entitled to maintenance. There is nothing like that in the relevant law[4]. These days, where a woman can earn more than the man, a man with such a wife may be granted maintenance since the primary consideration is the earning capacity of the parties. If this is so, how will a woman, who is ‘heart-broken’, feel if ordered to maintain the man who shattered her heart? This can swing both ways and provisions on maintenance in the prenup can settle such ill-feelings.

There are many other reasons for a prenup. For example, if one of the parties gives up a lucrative career after the marriage to allow the other party to pursue, say a political career, a prenup can ensure that he/she will be adequately compensated for that sacrifice if the marriage fails. A prenup can also address more than the financial compensatory aspects of marriage; and can cover other matters like payment of taxes, debts, living expenses, etc.

Prenup and Breach of Promise of Marriage

There have been cases where planned marriages are called off after the parties have invested much into it. Though hardly explored in Nigeria, breach of promise of marriage is a legal possibility[5]. There are few reported cases of claims for breach of promise of marriage[6]. Perhaps, one of the major reasons for this is the enormous burden of proving the existence of the promise in the first place. The law is that to establish the claim, the claimant must show that there was a promise to marry under the Matrimonial Causes Act, or under Islamic law or under customary law[7]. This difficulty can be solved with a provision for breach of promise claim in a prenup. The importance of this is that it would provide the needed corroboration required by law to establish the claim.

Prenup and Settlement of Property under Nigerian law

There is a legal necessity for a prenup in Nigeria. This is because, unlike many jurisdictions where state/national laws do a fine job of defining clear property rights in marriage and in the event of a divorce, the Nigerian legal framework is vague with wide discretion, the exercise of which has been influenced by patriarchal norms and an unconscious bias against women.

The courts have the power to allocate financial resources or settle property at the instance and for the benefit of the parties and the children of the marriage under Section 72 of the Matrimonial Causes Act[8] (MCA). There is however no provision under Nigerian law defining the premise and boundary of the exercise of the court’s power[9].  All the courts are required to do under section 72 MCA is to consider what is just and equitable in the circumstances of each case[10].

In applying this wide discretion, the courts have formulated, as the primary consideration, the contribution of the parties to the property[11]. In a situation where one of the parties is found not to have made any contribution, he/she will not get anything no matter the age of the marriage. Though the contribution envisaged have been stated to include moral support to the business that generated the income[12], this judicial creation defeats section 72 (1) which contemplates that the property due for settlement may belong to one of the parties and is most unfair. The idea approach which represents the intention of the legislature from a review of the law is that, once the property was acquired or paid for during the subsistence of the marriage, the parties are entitled to interest in the property and what is left for the court to do is to determine the extent or ratio of that interest. In exercising that discretion, the court may then consider factors such as contribution, the duration of the marriage, ages of children of the marriage and who has custody, etc[13].

It is hoped that one day, the court will have course to review its position on its fixation on contribution as the basis for determining interest in properties acquired during a marriage in the direction of my postulation above, however, the reality today is that the factor remains the default setting in the judicial system.  The court would not grant any interest unless contribution is established. The attitude of the court has done injustice in many cases against the spirit of section 72 of the MCA. This has resulted in a situation where parties who have properties abroad prefer to petition for the division of assets in other countries or apply for ancillary reliefs after proceedings in Nigeria where the legal framework is more favourable[14].

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A prenup will address the lack of clarity in the Nigerian law on settlement, of property in the event of a separation or divorce. A prenup may also be employed to subject issues of property settlement to the laws of countries (where the properties are situated) with a more favourable legal framework.

The Validity of Prenup under Nigerian Law

The MCA in Section 72(2) recognises the right of parties to execute prenup and post-nuptial agreement (a post-nuptial agreement is entered into after the marriage and in most cases, during the course of a divorce proceeding). Though the court has discretion on the enforcement of pre or post-nuptial agreements with respect to the allocation of property in the event of a divorce, experience has shown that the court readily enforces post-nuptial agreements[15].  The same approach would apply to prenup, in view of the fact that court is mandated to take into consideration any prenup made by the parties for settlement of properties[16].

Possible disadvantages of prenup

Like everything else, there are downsides to a prenup. A prenup is not romantic!  For most people, particularly women, being engaged invokes images of ‘Mills and Boon’ love stories, candlelit dinners and walks in the moonlight. Any talk of a prenup at this point may wake one from this sweet dream of bliss! In fact, it may raise suspicion. The reality, however, is that happily-ever-after are love stories meant only for the pages of ‘Mills and Boon’. Marriage is not only a romantic partnership; it is also a financial one as well. Failure to discuss finance and property is at the root of many difficulties experienced in marriages and divorces.

Another downside is that you have to disclose your assets to your partner as you are mandatorily required to disclose them. There may be special reasons why you may not want to do so but when you hide your assets; you are already planting landmines for the marriage.

A prenup is said not to be ideal for everyone but for persons with substantial wealth, older people marrying younger people and people who are entering into second or subsequent marriages. This should not be the case in view of the advantages enumerated above. It is not out of place for people outside of this bracket to enter into prenup or at least, have serious discussions on finance and property before marriage. Moreover, with reference to wealth, there is nothing to say that a couple without considerable wealth today will not have some tomorrow.

People also believe 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 death or divorce can engender a sense of lack of trust. As this maybe, a frank communication about finance before marriage which a prenup symbolizes can actually improve the quality of relationships and provide a great basis for communication in marriage.

From the perspective of Religious people, a prenup is a bad omen. If the person is a ‘Christian’, the argument will be that a prenup is contrary to God’s ‘till death do us part’ will for marriage. It is like asking a Nigerian to write a Will! If you tell your parents about a prenup, their response is likely going to be questions like: “what do you mean”? “Are you planning to divorce”? A prenup is not a divorce plan; it can be likened to insurance. The insurance of your property against fire does not mean you are inviting fire to destroy it and the fire may never occur but when it does, the effect will be cushioned. A prenup is also not all about divorce.

Conclusion

Though hardly considered, there are many practical and legal reasons why a prenup should be explored in Nigeria. There is nothing under our law which precludes its enforceability. A prenup proposal may be unromantic but it is a practical financial decision, it has nothing to do with love or the absence of it.  There is a reality after a marriage ceremony and like they say, ‘life happens’. In this age of materialism where ‘love’ can be a deceptive tool and where the once sacred institution of marriage has been demystified; the only assurance of true love may just be a prenup.

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Elvis. E. Asia is a Senior Counsel in Nigeria. Mr. Elvis can be contacted at elvis.easia@gmail.com

Footnotes

[1] The position is magnified because even in traditional societies, women also made incredible contributions to the family. Apart from ensuring there was food, and in most cases, toiled to provide it, they also catered for the family in ways money cannot buy or measure up to. In rural areas where people were engaged in farming, women carried out a lot of the farm work alongside their home duties.

[2] [2010] UKSC 42

[3] World Bank data shows the ratio is almost evenly spread in Nigeria with men slightly more than woman at 51%. See https://data.worldbank.org/indicator/SP.POP.TOTL.MA.ZS. The myth that women are more than men in Nigeria may be another unconscious strategy by our patriarchal society to keep women glued to their relationships, no matter how unhealthy. This conclusion is plausible because it is often canvassed to justify polygamy.

[4] Section 70 of the Matrimonial Causes Act which deals with maintenance is gender neutral. The fact that men do not claim maintenance in the event of a divorce is a cultural definition and not a legal one.

[5] The Evidence Act, 2011 recognizes breach of promise of marriage claims but provides that the claim must be corroborated.

[6] See Aiyede vs Norman –William (1960) LLR 253, Uso v Iketubosin [1975] WRNLR 187,   Mabamije vs Otto (2016) LPELR 26058(SC) and EZEANAH V. ATTA (2004) LPELR-1198(SC).

[7] The special requirement for proof of breach of promise of marriage was recognized by the Supreme Court in EZEANAH V. ATTA. Niki Tobi JSC in his usual linguistic flamboyance noted that a mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry.

[8] Cap M7 LFN 2004

[9] There is a justifiable argument in some quarters that unguarded discretion by a court amounts to a breach of the fundamental premise of the Rule of Law. This is because a major element of the rule of law is that the law must be precise and  clear leaving no room for subjective considerations.

[10] See generally Practical Law overview of Family Law in Nigeria by Efe Etomi & Elvis Asia. Available online at  https://uk.practicallaw.thomsonreuters.com/6-613 4665?__lrTS=20180110042641003&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[11] MR. ALEXANDER IBEABUCHI v. MRS. NNEKA IBEABUCHI (2016) LPELR-41268(CA), MRS. GETRUDE N. MGBEAHURUIKE v. MR. ROLAND C. MGBEAHURUIKE (2017) LPELR-42434(CA), Rimmer Vs Rimmer (1952) 2 All ER 863, Coker Vs Coker (1964) LLR 188, Amadi Vs Nwosu (1992) 6 SCNJ 59, Egunjobi Vs Egunjobi (1974) 4 ECSLR 552, Aderounmu Vs Aderounmu (2003) 2 NWLR (Pt 803) 1, Mueller Vs Mueller (2006) 6 NWLR (Pt.977) 627, Oghoyone Vs Oghoyone (2010) LPELR-CA/L/26/2003

[12] It must be noted that the courts have in some cases decided commendably that contribution may or may not be towards the acquisition of the property in issue but general contribution to joint living as husband and wife. See KAFI v. KAFI 1986) 3 NWLR (pt.27) 175 and Akinbuwa v. Akinbuwa (1998) 7 NWLR pt.559 p. 661

[13] This is consistent with the practice in the United Kingdom where our matrimonial laws originated from. In the United States, there is a presumption of 50/50 split and these factors may swing the ratio upwards or downwards depending on the circumstances.

[14] See Agbaje v Akinnoye-Agbaje [2010] UKSC 13

[15] In view of the fact that the court hardly questions post-nuptial agreements entered into during the course of proceedings, it is advisable for couples to enter into such agreements to avoid lengthy and expensive divorce process. However, prenups are more advantageous in that at the time of contracting same, emotional and sentimental feelings of hurt which normally stand in the way of post-nuptial agreements would be absent. From experience, parties hardly agree on anything after the marriage breaks down.

[16] The MCA refers agreements entered into between the parties before or after marriage. In some sections it is termed ante-nuptial or post-nuptial settlement. See sections 16 (1) (f), 19, 72 (2), 73 (1) (k) of the MCA.

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