1.0 Introduction
Prenuptial agreements, often referred to as “prenups,” are contracts entered into by intending married couples before the actual solemnisation of marriage, detailing the terms of arrangements on issues bordering entitlement to retirement plans and accounts, rights to separate and joint property in the event of a divorce or death of either spouse, child(ren) and spousal maintenance in the event of divorce, guardianship and custodial rights of parents after a divorce, settlement of debts owed to third parties amongst other things.
While Nigerians are not fully open to the concept of prenups, few believe that it doesn’t preempt that the marriage union will not last, rather it prepares parties for any type of eventuality. It should be noted that an enforceable prenup must comply with certain public policy considerations, provisions of the the Matrimonial Causes Act 1970 (MCA), and the principles of a valid written contract in Nigeria.
In this article, consideration is given to factors that may guaranty the enforceability of prenups in Nigerian courts.
2.0 The Legal Position of Prenuptial Agreements Under the MCA.
Under the MCA, which governs matrimonial proceedings in Nigeria, there are no explicit provisions regulating prenuptial agreements. This implies that the main statutory provision in Nigeria neither upholds nor invalidates prenuptial agreements.
However, for a prenuptial agreement to have any chance of being considered by a Nigerian court, it must be valid and properly executed. This includes both parties having independent legal advice, make full disclosure of assets, spell out clear terms on matters affecting the marriage relationship (children, possessions, finances etc) and the absence of vitiating factors i.e the agreement is entered freely without any form of duress.
In addition to clearly spelling out terms of the prenup, certain provisions in the MCA may serve as a guide in drafting a binding and enforceable prenuptial agreement. The following are relevant provisions of the MCA worth considering when preparing one.
2.1 Relevant Provisions in the Matrimonial Causes Act:
2.1.1 Section 69 – Settlement of Disputes:
Where a prenuptial agreement contemplates settlement of financial arrangement, the clause in the prenup should address all matters relating to the marriage and its dissolution in order for the Court to consider it as serving as evidence of the prior intentions of the parties when the report of compulsory conference and terms of settlement on the issues of financial arrangements relating to welfare, maintenance and custody of the children of the marriage are being decided as well as how the discharge of financial obligations to third parties have been settled by the parties to the prenup.
2.1.2 Section 70 – Powers of court in maintenance proceedings:
A prenup may determine whether a spouse will be maintained after a divorce at all or on a periodic or lumpsum basis, in addition to the children’s welfare and educational arrangements. Section 73 MCA provides for the maintenance of a spouse and/or children upon divorce. It also becomes relevant in specifically determining the financial obligations of the parties. For a prenup covering child support and spousal maintenance, it must consider the financial capacity of the spouse responsible for paying maintenance and any other relevant factor which the court is most likely to consider. This is because section 70 contemplates financial fairness and support between spouses after the breakdown of a marriage for it to enforce such provision, hence, the court will not enforce unrealistic or onerous terms so keep the prenup realistic rather than ambitious or vengeful.
2.1.3 Section 71 – Powers of court in custody, etc, proceedings:
When preparing a prenuptial agreement, parties to the prenup should consider the emotional, educational, and overall well-being of the child(ren) of the marriage. They are also required to determine who will have legal responsibility for the child(ren) of the marriage. This is because, the section prioritises the best interests and welfare of the children in decisions related to custody and guardianship following a divorce or separation, as such the agreement must be guided by this section if at all the clause in the prenup will be considered enforceable by the court.
2.1.4 Section 72 – Property Settlement:
During a matrimonial dispute where a prenuptial agreement is relied upon by the parties to determine property ownership/reversionary rights regarding any property acquired during the subsistence of the marriage, the Court will consider if the provision of the prenup particularly reflects the intentions of the parties relating to the property division. Therefore adhering to this provision of the MCA is important because it gives the court the power to make orders concerning the settlement of property between parties to a marriage upon divorce as negotiated by the parties. However, the Court will only make orders that it considers just and equitable, having regard to the interests of the parties and any children of the marriage.
2.2 Judicial Discretion:
While there is limited Nigerian case law specifically addressing prenuptial agreements, the principles applied are derived from general contract law, equitable principles, and the provisions of the Matrimonial Causes Act regarding financial arrangement on maintenance, custodial rights and ownership/reversionary interests relating to properties acquired by the parties to the marriage.
In practice, many Nigerian courts approach prenuptial agreements with caution, often viewing them with suspicion, particularly where they appear to undermine the rights of one party or the welfare of any children from the marriage.
Similarly, Nigerian courts have a broad discretion in matrimonial matters. These powers are itemized in section 73 MCA under General Powers of the Court. Even where a prenuptial agreement exists, the court may decide to enforce it after considering the intentions of the parties. It is trite that where the relationship between the parties is governed by a written agreement, the only duty of the Court is to resort to their terms as agreed in the contract to see whether such terms support the claims of both parties to the contract. See AONDO V. BENUE Links Nig Ltd[1] and EPE Resorts & SPA Ltd V UBA Plc[2].
On the other hand, the court will not enforce a prenup, though a valid written and properly executed agreement, if it is deemed to be unfair, unreasonable, or not in the best interests of the parties, particularly where the children of the marriage are involved. Factors such as undue influence, fraud, or lack of full disclosure at the time of the agreement may also lead to a prenuptial agreement being set aside. Again, the court will also consider the provision of the MCA. For instance, section 73 (k) MCA provides that amongst other things, the court may sanction an agreement for the acceptance of a lump sum or periodic sums or other benefits in lieu of rights under an order made in respect of a matter referred to in sections 70[3],71 [4] or 72[5]
2.2.1 Public Policy Considerations:
Aside from the provisions of the MCA, Nigerian courts shall also consider whether the terms of the prenuptial agreement are consistent with public policy. If the agreement is seen to contradict public policy (e.g., by unfairly disadvantaging one party or undermining the sanctity of marriage), the court shall refuse to enforce it.
3.0 Conclusion.
The enforceability of prenups are largely dependent on the circumstances surrounding their creation, the discretion of the courts and compliance with the MCA and public policy considerations, thereby prioritising fairness and equity in matrimonial disputes.
If you’re considering entering into a prenuptial agreement in Nigeria, it’s advisable to seek legal counsel to ensure that the agreement is drafted in a way that maximises its chances of being upheld by the courts.
1 LPELR-46876 (CA
2 LPELR-45310 (CA).
[3] Power of court in maintenance proceedings
[4] Power of court in custody,etc, proceedings
[5] Power of court in proceedings with respect to settlement of property.
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