Nigeria: Prenuptial Agreements: Wise Planning For A Happy Marriage?

Last Updated: 31 January 2019
Article by Private Client Group

Scenario

Ahmed Musa is the first son of Alhaji Bamako Dogoyaro, one of Africa's wealthiest entrepreneurs. He met Jumoke Smith at Shoprite Plaza sometime in November 2017 during her shift as a sales attendant in the mall. Ahmed shortly 'fell in love' with her and their love grew in leaps and bounds after that.

As they carried on with their relationship, they had the good sense to discuss some of the issues which were likely to arise as a result of their 'peculiar' situation. The issues were to do with the obvious differences in their social status, their divergent religious worldviews and the possible resistance from their respective family members who would likely be apprehensive of their relationship for the same reasons.

Ahmed sought legal counsel and was advised that a contract could be drawn up to protect the rights and interests of both parties and to allay at least some of their concerns. After a slightly awkward conversation about the prospect of a prenuptial agreement, they decided to get married if they could sign a contract setting out terms to govern their marital and post-marital relationship (in the unlikely event of a divorce).

A pre-marital contract is often referred to as a 'prenuptial agreement' or a 'prenup'. It is an agreement between two persons (whilst they are still of a cooperative mindset) setting out their rights and obligations in marriage or in the unlikely event of a divorce. Naturally, cultural beliefs, especially in a country like Nigeria, will influence people's views of agreements of this nature. However, a prenup should not be viewed as a contract made because the parties are contemplating or anticipating divorce.

Culture and predisposition

There is no doubt that, if not properly understood and utilized, prenups can breed distrust and either leave a spouse financially vulnerable or coerce a spouse into giving up on what they would have otherwise been entitled to benefit from. Cultural influences have particularly shaped the status of parties to marriage in Nigeria. Many Nigerian cultures still view marriage as a union between a woman or women and her/their benefactor. However, with globalization, there has been a marked, if gradual, paradigm shift in this view of marriage as a union between two or more unequal partners. The old stereotypes of the dominant husband and the subservient wife are giving way to a more modern view of marital union that values and protects the respective rights and obligations of parties thereto. It is in this modernized context of marriage that prenuptial contracts can and are likely to begin to thrive in Nigeria.

Prenup 101

Any class of persons may choose to instruct their lawyer to draw up a prenup. The reasons for this might range from those contemplated by Ahmed and Jumoke, to providing for devolution of property to children, separation of pre-marital debts and so on. Just as when going into any other contract, obtaining sound legal counsel is crucial. Since prenups are not designed to be used as a coercion tool or mechanism by either party, the courts have always had the final say on what contractual terms will be binding if challenged. For example, 'agreements' reached under duress of one party, will not withstand judicial scrutiny if objection or breach results. Drawing from the example of Ahmed and Jumoke, the intending spouses may have an agreement as to the religious indoctrinations to be given to the children, or the preference of both parties as to accommodating distant relations. However, these kinds of issues are not easy to adjudicate under a challenge, and so may not be appropriate issues to resolve in a prenup.

As for premarital and marital assets and liabilities, these considerations are more attuned to the determinations that can be made by a court. With the overarching oversight of the court, comes the need to ensure not only that the prenup contains nothing outrightly illegal, but also that it does not by the language of its terms breach the marital and child custodial laws of the jurisdiction to which it is subject.

What happens when the courts must intervene?

In Nigeria, whilst parties are free to contract, we are guided by existing statutes and case law around the issues that may arise in prenuptials. The Court will interpret a prenup having the overall interest of the child in mind, particularly in making an order of physical and/or legal custody of the child. So, whilst the parties might have agreed that in the event of divorce, custody will reside with one party, it is the duty of the Court to determine who will have custody, given the prevailing facts and circumstances influencing the best interest of the child. Both husband and wife may be entitled to equal rights to custody, provided they can demonstrate that they will take good care of the child. The issue of child custody came before the Court in the case of Mrs. Helen Nwosu V. Hon. Dr. Chima Nwosu (2011) LPELR-4654(CA) where the Court reaffirmed the position of the Supreme Court that both parents (generally) have equal rights and interest in the children of the marriage.

Similarly, the final decision on the settlement of assets and property upon dissolution of a marriage rests with the Judge. And so, whilst a prenuptial contract is one of the compelling documents a court will look into when making a settlement order, it will only uphold its contents if they are found to be in accordance with the law and what is 'fair' in the circumstance.

Prenups and unforeseen Situations

Despite the best of intentions, just like with any contract, prenups are nuanced in application. For instance, where a party to a marriage with an existing prenup agreement is found guilty of murdering the other party will such a spouse benefit from the provisions of the prenuptial agreement where they make

arrangements for the care of the now murderous spouse? There are no simple answers to such intersecting moral, ethical and legal dilemmas and these invariably invoke heightened emotions on all sides and inevitably, proceedings in Court. Simply put, under Nigerian law, "you cannot benefit from your own wrong" but this is not a rule of universal application.

As part of marital and wealth planning, prenuptial agreements when done right can be a helpful tool to address financial and legal consequences of marriage in Nigeria. The reader is advised to seek expert legal advice for further guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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