Are Prenups Valid in Nigeria & Other FAQs

A UK client  who was about to marry a Nigerian got in touch with me to draft a mirror prenuptial agreement and later in a mirror post nuptial in Nigeria. A mirror prenup is  recommended for people with multiple international domiciles, citizenship or businesses.

In the context of international prenuptial agreements, a mirror agreement is  drafted in one jurisdiction to follow the terms of an agreement that applies in another jurisdiction. It maximises the chances of enforcement of the agreed terms in multiple jurisdictions.

International prenuptial agreements are becoming increasingly popular as the world gets smaller and despite THIS rather regressive point of view about prenups in Nigeria more Nigerians are being asked to sign prenups by foreign and domestic partners. 

I especially recommend prenups for women who have a high net worth prior to marriage. While high net worth men that initiate divorce often evict their spouse from the matrimonial home without any assets whatsoever, and often even without her personal effects, high net worth women often lose joint property to their spouse when divorcing. At least this has been my experience as a divorce lawyer for over twenty years in Nigeria.

I’m not going speculate as to why this is so here.

Here are some FAQ’s about prenups in Nigeria;

Question: Do pre-nuptial agreements or a similar document exists in Nigeria

Answer: Yes, pre-nuptial agreements do exist in Nigeria and are treated primarily as valid contracts. 

Question: Are the valid contracts referred to “binding” or “just influential”?

 

A prenup is influential and not binding. Section 72(2) of the Matrimonial Causes Act recognises the right of parties to execute pre- and post-nuptial agreements. The relevant provisions are permissive and not interpretative and the courts retain unfettered exercise of their discretionary powers in divorce settlements.

Nevertheless, a prenup agreement would be upheld to the extent it is just and equitable. The courts determine marital property based on evidence of contribution by the applicant. The Married Women’s Property Act 1882 is still a statute of general application in Nigeria.    

In practice, however, the courts often direct divorcing parties to submit terms of settlement to avoid lengthy, contentious and difficult settlement and division property disputes. 

The Court of Appeal indirectly pronounced on the validity of prenup agreements, when it ruled that a trial court was right to hold that the respondent had a joint interest in a property belonging to the parties, because it was not referred to in their pre-nuptial agreement (Oghoyone v Oghoyone (2010) 3 NWLR (Pt. 1182) 564).

It is helpful to understand the intention of the client when drafting a prenuptial agreement – is it to protect property acquired before marriage? or is it to ensure adequate  maintenance/child support/settlement in the event of divorce separation? or protection for joint property/marital assets? 

Question:  Are there any criteria which must be followed when entering into a valid prenuptial contract in Nigeria? For example, in England a Pre-Nuptial Agreement, to be influential, must be:-

 a)     Fair;

 b)    Signed more than 28 days before the wedding;

c)     Both the wife and husband must have received independent legal advice (this is evidenced by the legal advisors signing the Pre-Nuptial Agreement);

 d)    Both parties must have disclosed to each other their financial circumstances; their assets, liabilities and income.

 

Answer: There is little or no case law or court rules guiding prenuptial agreements in Nigeria and the only statutory criteria is that it is fair and equitable. However, an agreement that attempts to oust or control the jurisdiction of the court will be considered contrary to public policy and probably ignored.

Otherwise, English law retains a strong influence on  judicial decisions in Nigeria and it would be good practice to conform to the criteria established in England.

The same answers would apply to questions about post nuptial agreements.

For more on joint ownership of property in the context of marriage in Nigeria read THIS.