We live in an age where more youths are business minded and investment forward, unsurprisingly people are beginning to have more assets at a young age. As a result people are more cautious when it comes to marriage as they begin to worry about what may happen to these hard earned assets in the event of a divorce. Though many are aware that there is something like premarital contracts, the real worry is how valid and enforceable is this contract in Nigeria.
Premarital contracts also known as “prenuptial agreements” or “prenups” is a type of contract entered into by couples before marriage, usually setting out provisions for division of assets, inheritance and other such financial provisions, for the spouses (and/or children) in the unlikely event of a divorce or a separation.
Before delving into whether premarital contracts are legal in Nigeria, it is important to first address the stigma that is sometimes attached to prenups.
When dealing with prenups, a worry for most people is how the other spouse may feel about being made to sign such document. People worry about whether it is right to enter a marriage already “anticipating” divorce. The legal advice here is that, for anyone who feels that they have assets that they specifically want to protect, a prenup is essential and entering into a prenup does not necessary mean that there is a foreshadowing or anticipation of divorce. A simple comparison, is like that of a person who enters into a life insurance policy or gets a car insurance, a person doesn’t enter into either hoping or fully anticipating that they would die or get their car crashed the next day, it is more of a safety net. In the same way a prenup does not necessary mean preparing for a divorce, like insurance, it is something that people hope they never need to use but is sometimes necessary.
When talking about the legality of prenups in Nigeria, a premarital contract like any other formal contract is valid taking into consideration our existing laws. What this means is that, yes a prenup is legal in Nigeria once both parties have agreed to be bound by it and there was no form of duress, misrepresentation or fraud.
Another angle to looks at here is that though a prenup is valid in Nigeria, to what extent is it enforceable in Nigeria.
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’
Simply put what this means is that, though a prenup is valid in Nigeria, its enforceability relies largely on the court.
In Nigeria upon the dissolution of a marriage the final decision on the settlement of assets and property lies with the court, as such it is a judge that has the financial decision. To ensure justice and equity, once there is a valid existing premarital contract/Prenuptial agreement, the judge will usually take it into consideration and uphold the contents where no party was encumbered by any fraud or mispresentation. The key word here is ‘valid’, the prenup like any other type of contract must be a valid contract which is fair, equitable and in accordance with the law, before it will be enforced by the court.
A final legal advice is that, the validity of a contract is largely reliant on how it is drafted, as such, it is important for anyone interested in entering into a premarrital contract to engage the services of a legal practitioner for the drafting of the contract to ensure that the contents of the contract can stand in a court of law.
BY : EFEMENA IGHORIMOTO