Chibundom Ezeolisa

19th Dec, 2023 : 9;16am

Ever heard of the word Prenup? I’m sure you’ve heard it somewhere probably in the movies or during one of the episodes of gender wars on Twitter. Well, 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 with the purpose of establishing the financial and property rights of each spouse in the event of a divorce, separation, or the death of one of the spouses. 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 separation or divorce. Prenups although primarily used to address the financial compensatory aspects of marriage can also be used to cover other matters like payment of taxes, debts, living expenses, among others. Prenups are usually meant to protect the best interest of both spouses and parties involved and are basically contract agreements that stipulate such rights[1]

History

Let’s talk about how we came about such a phenomenon. Prenuptial agreements date back as far as ancient Egypt. Yes, that far. In fact, one of the earliest known prenups is over 2000 years old and the document in question is commonly referred to as the "Ketubah" and is said to be associated with the ancient Jews. The Ketubah is a Jewish marriage contract, and while its roots are ancient, the specific format and content have evolved over the centuries. The Ketubah outlines the husband's financial obligations to his wife in the event of death or divorce. It serves as a legal and binding agreement, specifying the wife's rights to financial support, property, and other considerations. The exact content of the Ketubah can vary, but it typically addresses issues such as the wife's dowry, her rights in case of divorce, and provisions for her financial security. In these times, the prenuptial agreements were not documents drafted by lawyers that represented the rights of each spouse. Rather, they were written or verbal contracts establishing the property that each spouse would bring to the marriage. They were used to establish the bride's dowry and the bread-wealth; the price that a groom would pay the bride's family in exchange for marrying her[2]. These agreements were almost always made by the couple's parents, not by the happy couple themselves. Modern-day couples might cringe at the thought of their in-laws choosing their spouse and haggling over the price for their hand in marriage, but it was common practice until the early 20th century and still exists in several parts of the world, inclusive of Nigeria.

Some historical records suggest that premarital agreements existed in ancient Rome and Babylon. In these societies, individuals could enter into contracts that specified the division of property and assets in the event of a divorce or separation. In medieval Europe, the concepts of dower and dowry were prevalent. Dower was a provision made by a husband for his wife's support in the event of his death, while dowry represented the assets a woman brought to the marriage. While not exactly the same as modern prenuptial agreements, these arrangements had some similarities in terms of specifying financial arrangements in marriage. During the 19th century, attitudes toward marriage and family began to shift, influenced by changing social and economic factors. The idea of contractual agreements before marriage gained some acceptance, especially among the upper classes. Prenuptial agreements started gaining legal recognition in the early 20th century in the United States and Europe. Courts began to enforce agreements about the financial standings of the parties in a marriage that were considered fair, reasonable, and entered into voluntarily by the parties with full disclosure. In the United States for example, The Uniform Marriage and Divorce Act (UMDA), first published in 1970 and later revised, provided a framework for the enforcement of prenuptial agreements. It established guidelines for validity, ensuring that the agreements were not unconscionable and that both parties had made full financial disclosures.

Meanwhile, 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. It can safely be said that people blindly entered 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.[3] 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 who have financial strength to get married to.

Another reason was that divorce was not common because of the place of family, deep-rooted traditions and religion that hold couples bound to their marriages and relationships. Today, these factors’ hold on marriages has lessened and 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.

Validity

The Matrimonial Causes Act in Section 72(2) recognizes 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 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[4] 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[5]

Enforceability 

It is imperative to state at this juncture that under Nigerian law, Prenups are generally valid as agreeably they are recognized in the Nigerian jurisprudence, but remember that such agreement is still made subject to what the court deems fit, fair, and proper in the circumstance. 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 (MCA)[6]. There is however no provision under Nigerian law defining the premise and boundary of the exercise of the court’s power[7]. 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[8]

Effect

As Divorce has become a feature of today's society, the basis for the unpopular nature of prenup in Nigeria no longer holds sway. Having a prenup can protect each spouse’s separate property, support estate planning, set definitions for key terms like ‘private property’, ‘marital property’ etc, clariy 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 marriages. In such circumstances, a prenup will protect the inheritance rights of children from a previous marriage.

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 though largely considered 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.

[1]  Bilante Int Ltd v NDIC (2011) 15 NWLR (pt 1270) 407 at 423

[2] Keith B. Schulefand: The long and strange history of prenuptial agreements

[3] The position is a tad bit magnified because even in the traditional societies, women also made incredible contributions to the family.

[4] In view of the fact that the court hardly question 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.

[5] 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.

[6] Cap M7 LFN 2004

[7] 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.

[8] 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

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