Are Prenups Valid in Nigeria and 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.
divorce-cartoon_rman1500h1

Let’s Press For Progress on Prosecuting SEA in the Aid Sector

 

In the past few weeks there has been significant outcry and comment on the activities of international development agencies in countries where they work spreading aid and apparently disease and immorality. Their crimes against women have been exposed for all to see. Their crimes in Haiti, in Chad, in South Sudan, in Syria. Even crimes  sexual exploitation and abuse crimes committed by international agencies in the United Kingdom.

In the ensuing hand wringing and apologies we have heard again and again – from DIFD, from the Charity Commission, from Penny Mordaunt and even form the UN how they are learning and working to make it better. How they are improving safe guarding and whistle blowing procedures and mechanisms and how they are supporting and helping the women that have been abused and exploited by agents of these organisations.

I am yet to hear of one single woman that has been helped. I am yet to hear of one single women that has been supported. I am yet to hear of one single women that has been rehabilitated or restored. I am yet to hear of one single predator facing criminal, civil  or even long term professional consequences. All I have heard is how the agencies are ‘improving’ and ‘learning’ and how deeply and truly sorry they are. How much they regret the impact of the abuse on the abused.

Femi Oke raised this issue in her insightful video on the Haitian women that were raped by UN staff and left with children they can scarce afford to care for. She asked the UN Under Secretary General why its taking so long to actually give these women justice. And I would like to ask everyone all over the world that is piously and opportunistically claiming they stand with the victims why is it taking so long? You believe her? So what?

Everyone says they cannot turn back time and undo the sins and crimes of the past. Everyone seems to claim that all they can do is ‘prevent.’ I would like to know how well attempts at prevention have worked so far. Have we prevented war crimes? We have been talking and writing about it since 1945. Have we been able to prevent famine and poverty? After decades of fighting both? Have we been able to prevent disease and death? Murder? Rape? Corruption? Greed? Crime?

I laud the efforts at prevention but I do declare that prevention has not yet prevented anything.

There is only one way to deal with crimes. And sexual assault and rape and domestic violence and all the other crimes of violence against women and men too. And that is to punish the perpetrators, the violent, the criminals. There must be consequences for bad behaviour. And the bad behaviour has to be identified correctly because right now the only people that seem to be suffering the consequences of SEA are the women who are the victims.

Of course the prospect of punishing men for sexual assault sexual crimes and sexual harassment seems like a daunting one. Which man will escape punishment? Which man will not be implicated? Because men (and the women that enable them) seem to believe that there are few men that would be found innocent. I do not believe this. I believe that there are many men in the world that are not predatory in their sexual and social behaviour.

Ban Ki Moon, Winnie Binyanyima, Mark Goldberg, Caroline Thompson, Barbara Stocking have all come out and made grovelling public apologies and expressed how bad they feel about the ongoing sexual exploitation and abuse in the international development sector. But nothing has changed. The first reports of SEA in aid organisations may have emerged as early as 2008. I raised the alarm in 2010. Helen Evans raised the alarm in 2014. We are now in 2018 and some people are still ‘learning’ and ‘improving.’  Whether you take that from 2008 or 2014 that is enough time to get a first degree, a graduate degree or even a PhD. What are they still learning pray tell me?

Jane Holl Lute that was appointed to coordinate and strengthen the UN response to SEA went on record to say ‘that for the women of the world this is an ever present danger. there is no where women are safe, there is no family, no church, no school, no organisation, no work place.”

I say that is a woman that gave up before she even started. I reject her premise. There ARE places and spaces where women are safe. And we create them. Femi Oke asked her an important question – why are there so few cases that actually get to court? Ms. Lute’s response – I don’t know the answer to that.

I do. There is no real political will to actually get any cases before the courts. And if any case were to make it before the court the same organisations now extolling their regret would pay very expensive lawyers to discredit and tear apart the women that dared to complain. Save the Children have already sent lawyers to shut down media that report on their crimes. Oxfam’s PR machine has moved forward extolling the great work they purportedly do now that the initial outrage has subsided.

Its all hypocrisy. Its all platitudes and fancy grammar. Just because some clever people have mastered the speakese of gender equality does not make them gender complaint. That was the very problem that I tried to highlight at Oxfam when I was their country director in Nigeria in the aftermath of my assault and even before.

A male program manager actually suggested that I ‘tease’ him when issuing instructions instead of just telling him what to do. You know – why don’t you smile a little first, some sugar with the medicine. He actually used that word. He didn’t even get a slap on the wrist when I reported it. One of the deputy regional directors was a complete rake. He did not see that his constant sexually charged comments were NOT gender friendly. And when I tried to point it out to them what I got was outrage – and denial. After all – one of them said to me – I ensure that at least 50% of my beneficiaries are women. Now with hindsight I am again struck by how sinister that sounds. Did insisting that more beneficiaries of the aid Oxfam and other organisations were handing out unintentionally make women more vulnerable?

My abuser at Oxfam in his response to my accusation of sexual assault said in his defence when asked why he didn’t respond to my email demanding an apology and a promise to desist from further SEA that ‘she wanted to use her gender against me’ echoing an earlier petition by one of my male program officers who wrote to the regional office that I ‘wanted to dominate my environment.’ I’m still trying to understand exactly what they meant. Surely these are leadership qualities that were being very cynically used against me.  And only a problem because I am a woman. Which male executive would be reported for trying to dominate his environment?

I wish I can say that I am impressed by the measures the UN, DFID, Oxfam, Save the Children, the  UK’s Charity Commission et al are taking to ‘prevent’ SEA. I am not. And you shouldn’t be either. They are just saying what they need to say to ensure that the money keeps rolling in and that their lifestyle and their power stays intact. If that means grovelling for the media and the public so be it.

I’ll be impressed when they actually prosecute or punish someone, and I don’t mean just dismiss them or let them resign and move on to other organisations. I mean real consequences, like the kind that the victims and whistle blowers have had to suffer. Loss of income, bullying, loss of status and respect, and credibility. I’m pretty certain that Penny Lawrence has already received her first consultancy contract from Oxfam or one of their friends. They won’t let let lose her house through failure to pay her mortgage or her children lose their education opportunities. They will reward her for making a ‘sacrifice to the cause.’  And the cause is Big Money. And Power.

For everyone $1 that flows into ‘poor countries’ from ‘rich countries’ $24 flow from these same poor countries to the rich. The aid industry was is worth $130BILLION a year but the net outflows to the rich countries of the south is over $1 TRILLION. Like Russell Brand so eloquently put it ‘the neutral governing and regulating bodies are in fact the administrative henchmen of a system of globalisation that is based on the exploitation of poorer countries.’

We really need to rethink aid. For most of my time working in development I avoided the debates around foreign aid. I avoided them because it would have been hypocritical of me as an employee and hence a beneficiary of foreign aid to criticise aid. It created too much cognitive dissonance. And I really thought I could change the system from the inside. I thought they would listen to me as a national and as an expert on her environment. Did they? Of course not.

I left Ashoka not only because they didn’t pay me enough for the kind of hours they expected me to keep but also because they really didn’t want to promote appropriate development. Oxfam offered more money. Now I know why. Its how they keep everyone compliant. Notice that during most of the scandal only a handful of former employees dared to come forward and say anything against the aid cartel in Africa? Who wants to lose a well paid job or consultancy on a continent that isn’t creating jobs and isn’t paying a living wage for most jobs? Mostly the aid agencies just exploit our bleeding hearts. We’re just the foot soldiers that do their dirty work while they divide the spoils. And like we all know, foot soldiers are not supposed to question the capo or the boss. I did a lot of that. Not sorry.

I’m not going to tell anyone what to do. Give money to humanitarian causes or not give money. Work for humanitarian causes or not work for them. Go to Africa or any other country you think is less privileged than yours and build a school or a hospital or not. Support the left or support the right. Those are individual and personal choices. Do whatever makes you feel good.

I feel pretty good. I brought attention to the SEA of female staff working for BINGOs in Africa. Don’t worry, they’ll get around to that eventually. All its going to take is just one more whistle blower to prove their hypocrisy even in the wake of the scandals of the past 6 months. Right now they’re prioritising SEA of beneficiaries and not employees because the legal liability is less onerous. It won’t be long now. Abusers abuse. They cant help themselves. And somewhere out  there, there is another woman just like me who won’t keep quite.

Happy International Women’s Day.

 

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Art by Favianna Rodriguez, US artist/activist of Latina and Afro-Peruvian roots