Pre Nuptial Agreement And Its Controversies

By Deborah Iniye Warrie Esq

FICTIONAL STORY

Rotimi and Onome met during Rotimi’s National Youth Service (NYSC) in Jos, Plateau State of the Northern part of Nigeria. Things between them heated up so fast that by the end of Rotimi’s service year they decided to get married.

Regardless of how lovestruck they were about each other, Rotimi due his father’s influence/affluence, as an only son of the one the wealthiest Oil Merchant in the country, gave Onome a prenuptial agreement to sign before they tied the knot. The prenuptial agreement stated that, in the event of a divorce Onome was only entitled to 75% of Rotimi’s assets as an alimony and joint custody of the children if any. Onome willingly signed the prenuptial agreement as she was greatly enamored by Rotimi.

Ten years later, Rotimi and Onome’s marriage experienced a deep crisis. Rotimi filed for divorce and presented their prenuptial agreement, as a consent judgment for the Court to use and settle both parties.

Surprisingly, the Court in its judgment voided their prenuptial agreement, and instead of 75% granted Onome 50% of Rotimi’s assets as her alimony including joint custody of their three children.

• Why did the Court void Rotimi and Onome’s prenuptial agreement?
• What is a Prenup?
• Who Needs a Prenup?
• How is a Prenup viewed and addressed in other jurisdictions outside Nigeria?
• Is Prenup fully encapsulated in the Nigerian Legislation?
• What are the ingredients of making a Valid Prenup?
• What happens if you divorce and you didn’t make a Prenup?

All these will be addressed in this Article.

• First What is a Prenup?

A prenuptial agreement (“prenup” for short) 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) and specifies what each person’s property rights will be after the marriage. In some countries, a prenuptial agreement is known as an “antenuptial agreement,” or in more modern terms, a “premarital agreement.” Sometimes the word “contract” is substituted for “agreement,” as in “prenuptial contract.” An agreement made during marriage, rather than before, is known as a “postnuptial,” “postmarital,” or “marital” agreement

• Who Needs a Prenup?

Contrary to popular opinion, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes.

• Reasons some people want a prenup:

1. Pass separate property to children from prior marriages: 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.
2. Clarify financial rights: Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.
3. Avoid arguments in case of divorce: Some couples may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony.
4. Get protection from debts: Prenups can also be used to protect spouses from each other’s debts, and they may address a multitude of other issues as well.

• How is a Prenup viewed and addressed in other jurisdictions outside Nigeria?

1. South Africa : In South Africa, a civil marriage or civil union is, by default, a marriage in a community of property. In order to marry out of community of property, the parties must sign an antenuptial contract in the presence of a notary public prior to their marriage and the contract must be registered in the Deeds Office within three months from the date of signature of the contract. Upon dissolution of the marriage, whether by death or divorce, the spouse with the lesser accrual would have a claim against the spouse with the larger accrual for half the difference between their accrual values.
2. India: In India, prenuptial agreements are very rare and do not have any governing laws. However, with rising divorce rates people are showing increasing interest in them. Some lawyers are of the opinion that prenups don’t have legal sanctity in India. However, some form of contract is signed in some cases, usually among affluent citizens. But, the agreements need to be reasonable and not violate pre-existing laws like the Hindu Marriage Act. Indian courts allow a memorandum of settlement to be signed during divorces. But, no court has yet been asked to enforce a prenup. These agreements may come under the Indian Contract Act 1872. The Section 10 of the Indian Contract Act states that agreements are to be considered contracts if they are made by the free consent of the parties. Goa is the only Indian state where a prenuptial is legally enforceable, as it follows the Portuguese Civil Code, 1867. A prenuptial agreement may be signed between the two parties at the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then the marital property is simply divided equally between the husband and wife.
3. Thailand: The prenuptial agreement in Thailand is concluded by mutual consent of the man and woman who want to marry. Under Thai law, a prenuptial agreement is recognized by the Commercial and Civil Code of Thailand. A valid and enforceable Thai prenuptial agreement legally requires that the content of the prenuptial made in Thailand cannot be against the law or good morals; both the prospective husband and wife must understand the content of the prenuptial; the prenuptial in Thailand must be made before the marriage, a contract between husband and wife concerning personal and jointly owned property made after the marriage registration (post-nuptial) is void; both the future husband and wife must sign the prenuptial in the presence of at least 2 witnesses and the agreement must be entered into the Marriage Register together with the marriage. These conditions are found at clause 1466 of the Commercial and Civil Code of Thailand.
4. Europe: The Marriage Contract by Flemish artist Jan Josef Horemans the Younger c. 1768 Prenuptial agreements have long been recognized as valid in several European countries, such as France, Belgium, the Netherlands, Germany, Poland, Switzerland, Sweden, Denmark, Norway and Finland. While in some of these countries there are limits on what restrictions the courts will see as enforceable or valid (e.g. Germany after 2001, where appeals courts have indicated this), a written and properly initiated contract, freely agreed upon, cannot be challenged by, for instance, invoking the circumstances under which the marriage broke down or the conduct of either part. In France and Belgium (as in Quebec, which has the same judicial tradition) prenuptial agreements must be set up in the presence of a notary. In many of the countries mentioned, prenuptials may also protect the non-shared property and money from being pulled into a bankruptcy and can serve to support lawsuits and settlements during the marriage (for instance if one part has sold or wrongfully mortgaged a piece of property that had been set aside by his/her partner).
5. Ukraine: In accordance with provisions of Section 10 of the Family Code of Ukraine, marriage relationships, rights and duties of spouses can be regulated by a Marriage contract as well if spouses wish to settle their property relations in other manner then it is provided by the Family Code of Ukraine. Marriage (prenuptial) contract can be concluded by a woman and a man, who applied for registration of their marriage as well as by spouses. Underaged person, who wants to conclude a marriage contract before registration of the marriage, is to have a signed consent of his/her parent or custodian certified by a notary. Numerous provisions of this section of the Family Code of Ukraine provide quite extensive requirements as regarding the form and contents of the marriage contract and the procedural issues of making the same are regulated by appropriate Instruction of the Ministry of Justice of Ukraine as regarding the procedure of notarization of marriage contracts as well as far as notarization is required.
6. United Kingdom: Prenuptial agreements historically had not been considered legally enforceable in England and Wales due to a reluctance on the part of the judiciary for public policy reasons. The 2010 Supreme Court test case of Radmacher v Granatino, overturned the previous legal framework on them to recognise changing societal and judicial views on the personal autonomy of married partners. Pre-nuptial agreements can now be enforced by the courts as part of their discretion in financial settlement cases under section 25 of the Matrimonial Causes Act 1973 so long as the three stage Radmacher test is met and it is considered fair to do so, keeping in mind the interests of any child of the family. Radmacher holds that the courts will give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. The case provided substantial amounts of guidance relevant to all nuptial agreement cases that have occurred since 2010.
7. Canada : Prenuptial agreements in Canada are governed by provincial legislation. Each province and territory in Canada recognizes prenuptial agreements. For instance, in Ontario prenuptial agreements are called marriage contracts and they are recognized by section 52 of the Family Law Act.
8. United States: In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia, and they are enforceable if prepared in accordance with state and federal law requirements. It has been reported that the demand for prenuptial agreements in the United States has increased in recent years, particularly among millennial couples. In a 2016 survey conducted by the American Academy of Matrimonial Lawyers (AAML), member attorneys reported seeing an increase in the total number of clients seeking prenuptial agreements before marriage in recent years, particularly with the millennial generation, with the strongest interest in protecting increases in the value of separate property, inheritances, and division of community property.
9. Australia : Prenuptial agreements are recognised in Australia by the Family Law Act 1975 (Commonwealth). In Australia, a prenuptial agreement is referred to as a Binding Financial Agreement (BFA).

In some countries, including the United States, Belgium and the Netherlands, the prenuptial agreement not only provides for what happens in the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy. Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in addition to, or some cases, in lieu of prenuptial agreements. Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married. When divorce is imminent, postnuptial agreements are referred to as separation agreements.

• Is Prenup fully encapsulated in the Nigerian Legislation?

Presently, there is no legislation or provision for prenuptial agreement in Nigeria. However, the Matrimonial Causes Act 1970. Section 72 (1)  defines settlement of property between a couple in the event of a divorce. The said section states thus

 Power of court in proceedings with respect to settlement of property.

(1) The court may, in proceedings under this Act, by order require the parties to the   marriage, or either of them, to make, for the benefit of all or any of the parties to, and the   children of, the marriage, such a settlement of property to which the parties are, or either   of them is, entitled (whether in possession or reversion) as the court considers just and   equitable in the circumstances of the case. 

• What are the ingredients of making a Valid Prenup?

A prenuptial agreement is only valid if it is completed prior to marriage. After a couple is married, they may draw up a postnuptial agreement. In most jurisdictions in the United States, five elements are required for a valid prenuptial agreement:

• agreement must be in writing (oral prenups are generally unenforceable) must be executed voluntarily;
• full and/or fair disclosure at the time of execution;
• the agreement cannot be unconscionable;
• it must be executed by both parties (not their attorneys) and often notarized and/or witnessed

What happens if a couple doesn’t Make a Prenup and divorce:

If you don’t make a prenuptial agreement, your Country’s laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) The law of the Country may even have a say in what happens to some of the property you owned before you were married.

What Can You Accomplish With a Prenuptial Agreement?

• Identify and divide separate and marital assets: When couples divorce, one of the first tasks is to identify and allocate separate and marital property. Separate property includes the assets a spouse owned before the marriage or which were acquired through a gift or inheritance. Marital property includes assets the spouses acquired during the marriage. Typically, if you can prove that you owned the property before you got married, it will remain your separate property, and the court won’t award any of it to your spouse.
• Identify and allocate separate and marital debts: There’s no doubt that money troubles can be the cause of many divorces. If you and your fiancé want to avoid falling into the same trap that many do, you can add a provision to your prenuptial agreement to address debt. The essential component of a fair and valid prenup is full disclosure. Both parties should complete a financial disclosure statement, identifying all of their assets and debts. They should also attach a copy of this to the prenup contract.
• Spousal support concerns : It’s common for one spouse to earn more than the other or for one to stay home and raise children rather than follow a typical career path. Depending on the length of your marriage and your state’s divorce laws, the lower-earning spouse may be entitled to financial support from the other.
• Special considerations if you have children from a previous marriage

If you’re remarrying and either spouse has children from a previous marriage, your prenuptial agreement should include a provision that will ensure that your children can inherit their share of your estate in the event of your death, if that’s what you intend. In a prenup, one or both spouses can give up the right to claim a share of the other’s property at death, perhaps in exchange for an agreed upon amount of assets.

Keep property in the family : If you have separate property that includes an item that you would like to keep in your immediate family, like a family heirloom or inheritance, you and your spouse can agree that it will remain in your family after a divorce. If you expect an inheritance or other property later, you can also include a provision that explicitly addresses future gifts or inheritances. Although this may be unnecessary, depending on the laws of your state and separate property laws, making these wishes explicit and putting them down in writing can be a good idea if you have any concerns about this.

This brings us to the question; why did the Court void Rotimi and Onome’s prenuptial agreement?

During their divorce proceedings, Onome’s lawyer brought to the attention of the Court her birth certificate. He further informed the Court, that at the time Rotimi and Onome got married, Onome though a 200 Level Student of Giant Print University, was just 17 years old. Thus she was still a minor and had no legal capacity to enter any agreement with Rotimi. Intrinsically, the prenuptial agreement between them was illegal/void and she was entitled to even distribution of Rotimi’s assets.

Thus the Court, taking into account the aforementioned and on the following grounds:

• Section 72 (1) Nigerian Matrimonial Causes Act 1970
• Section 3 (1)(e) Nigerian Matrimonial Causes Act 1970 Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where either of the parties is not of marriageable age. 
• Section 21 CHILD’S RIGHTS ACT 2003

No person under the age of 18 years is capable of contracting a valid marriage, and accordingly a marriage so contracted is null and void and of no effect whatsoever.

• Onyiuke III v. Okeke (1976) LPELR-8039(SC)

“It is the law that a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy or if the intention of the parties in making the contract is thereby to promote something which is illegal or contrary to public policy; and an illegal contract is void and cannot be the foundation of any legal right. This proposition of law was clearly enunciated by Brett, M.R., in Herman v. Jeuchner (1885), 15 Q.B.D. 561, at page 563 as follows: “When the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced.” In Halsbury’s Laws of England, 3rd Edition, Volume 8, page 126 para. 218, the law on the point is also succinctly stated as follows: “A contract is illegal where the subject-matter of the promise is illegal or where the consideration or any part of it is illegal.” And in William Hill (Park Lane) Ltd. v. Hoffman (1950) 1 ALL E.R. 1013, it was held that a deed of charge executed in respect of gaming debts must by virtue of the Gaming Act 1835, be deemed to have been executed for an illegal consideration, and was therefore void.” Per DARNLEY ARTHUR RAYMOND ALEXANDER, JSC (Pp 9 – 10 Paras B – A)

Granted Onome 50% of Rotimi’s assets as her alimony. This fictional judgment simply shows that, depending on the circumstances of the case,the Court looking at the content or under what conditions and circumstances that a prenuptial agreement was made, may declare same unenforceable if it is:

• Signed with a minor (as in Rotimi and Onome’s case)
• A prenup obtained under fraud/duress
• or without adequate disclosure of assets,
• Requirements that one person will do all housework
• or that the children will be raised in a certain religion etc.

CONCLUSION FOR LITIGANTS

This article is in no way encouraging divorce, it is only enlightening you of the inevitable and the option you can take IF YOU WANT TO.  Also, divorce process can be emotional and costly. So for couples who wish to reduce the expense and turmoil that typically accompanies the legal process, you can begin drafting your own prenuptial or postnuptial agreement. IF YOU WANT TO.

One way to do this is through premarital mediation which  is an alternative way of creating a prenuptial agreement. In this process, a mediator facilitates an open discussion between the couple about all kinds of marital issues, like expectations about working after children are born and saving and spending styles as well as the traditional premarital discussions about property division and spousal support if the marriage is terminated. The engaged couple or married couple as the case may be, makes all of the decisions about what would happen in the event of a separation or divorce with the assistance of the mediator. They then draft either a deal memo or a premarital/post nuptial agreement and have it reviewed by their respective attorneys.

CONCLUSION FOR LEGAL PRACTITIONERS

From my perceptive, Section 72 of the Nigerian Matrimonial Causes Act 1970, is not enough to aid divorce proceedings in our Courts. There is an imperative need for us to review the current ACT and amend the same to blend with the current trends of resolving divorce disputes and every other matrimonial matter.

Again, giving room for prenuptial agreements will fast track, divorces cases in Court and ease the burden of the trunk load of petitions in our cause list, especially if we embrace premarital meditation. An agreement developed via mediation is typically less expensive because fewer hours are spent with attorneys as the couple have already made all of the decisions together, rather than one side vs. the other.

Finally premarital mediation is a new novel aspect of law, that is gaining international recognition, in Family law world wide.  Rising concepts of law like this, should be embraced and exposed to our jurisprudence as a developing nation.

Prenuptial agreements have become more common, and the laws in international jurisdictions have become friendlier toward them as such, ours shouldn’t be any different. As seen in our society today, divorce and remarriage have become more prevalent, with both sexes fighting for equality in distribution of assets. Thus, our Courts and Statues ought to uphold premarital/ post nuptial agreements like most advanced countries.

If we intend to mark our territory as a nation globally,our jurisprudence must develop with the world. Deborah I Warrie Esq.

Reference List:

1. https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-overview-29569.html
2. https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-what-law-allows-30283.html
3. https://en.wikipedia.org/wiki/Prenuptial_agreement
4. https://primsol.lawpavilion.com/
5. https://lawsofnigeria.placng.org/laws/C50.pdf
6. https://lawsofnigeria.placng.org/laws/M7.pdf

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