Who Really Needs A Prenup in Nigeria?

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In my last blog post I asked whether prenups are valid in Nigeria and sought to show that yes they are. The question arose as to the value of a prenup agreement in Nigeria. Lady Hale in her dissenting judgement in Radmacher v Radmacher (2010) said the object of a prenup ‘is to deny the economically weaker spouse the provision to which she would otherwise be entitled.’ This may be so in the UK but you may ask what is the relevance of a prenup in a legal system that recognises separation of marital property and applies strict property principles like Nigeria? Thus entitling the economically weaker spouse (usually the woman) very little.

Prenups are designed to protect the economically stronger partner in a marriage. While the presumption is that this will be the male partner from experience in my practice in Nigeria, women initiating a divorce are often the economically stronger partner. At least this was so in at least 8 out of the last 10 cases I have taken to trial. This may not be unrelated to the fact that economically weaker women may not have the resources necessary to seek a statutory divorce which is known to be an expensive process. Or the fact that some economically independent and secure mature women under social pressure to marry, marry men that are economically weaker. Issues we will discuss some other time.

These women’s husbands treated their spouses property as if it was their own. Conflict over finances were frequently the cause of the marriage breaking down. Their husbands often claimed that they ‘own’ the woman and everything she owns as a result and they often based their ‘ownership’ on the fact that they paid a ‘bride price’ under customary law. There are two problems with this argument. And both of them stem from a colonial misinterpretation of customary law principles.

The concept of bride price is been grotesquely distorted. (Diala 2016) The bride price does not buy a bride. It merely secures an interest in the fruit of her womb and her labour, and not necessarily the fruit of her labour (though customary laws differ among the various tribal groups in Nigeria.) Historically under customary law a woman remained an autonomous person separate from her husband. (Acholonu C. 1995) Hence a woman was returned to her kinsmen for burial upon her death and her kinsmen could hold her husband accountable for her well being. (Much has been said about the widowhood rituals that have survived colonialism and women still have to undergo. A widower was likewise made to undergo trials by a deceased wife’s kinsmen to prove that he did not kill his wife, their sister. However, these rituals have survived colonialism and the colonial religion to a lesser degree.)

The products of a woman’s labour were her own. She could farm her own plot to which she has been given possesory interest by her husband (in addition to contributing labour to her husbands farming), trade her surplus produce, she could independently own economic trees and livestock (Acholonu C ibid). She could accumulate wealth and join female leadership cults in her conjugal and her marital communities independent of her husband. She could lend her husband money or support him economically when he took titles (Henderson & Henderson 1966). It was understood that any children she bore were also considered assets even if they were not biologically the children of her husband (Diala 2016).

Adultery in the common law or in the Biblical sense was unknown and was not an automatic grounds for divorce contrary to what may (mostly male) authors assert. Most often the husband was polygamous and could chose not to have further sexual relations with the woman but her children belonged to his homestead/household.

Under customary law (including Islamic law) there was complete separation of marital property. Then again there were also no individual property rights such as we have today. All landed property was communal property and owned in common by the lineage. When women acquired rights to landed property they often exercised their rights though their own kinsmen rather than their husband. I will write more about customary law of marriage in another post.

It was the expected order of things that women brought wealth into their natal family and not to their husband. (Ashiru 2007) The idea that men owned wives and therefore everything their wife or wives owned is most likely the introduction of the principles of unity of person and coveture into the Nigerian socio- legal space in the late 19th century with colonialism. (Diala 2016)

Under the principles of unity of person a man and his wife were considered one person. This principle was abolished by the Women’s Property Act of 1882 a statute of general application in Nigeria and by a number of decided cases. Unfortunately many women (and men) remain ignorant of the law and still think coveture and unity of person principles apply or think that it is a part of customary laws, which it is not. Men have used this dead letter common law principle to control women’s assets and women have used it to cede control of their assets often in the name of ‘submission’ – another grossly abuses and misinterpreted term that has more to do with the Abrahamic religions than customary law. We’ll also leave this for a subsequent post.

One way that women cede control and in fact transfer property to their husbands is by purchasing property and assets (anything from land, to cars, to refrigerators) and putting their husbands name on the purchase receipts or title deeds.

Under statutory Nigerian matrimonial law, the courts the courts have complete and total discretion in making decisions on sharing of marital assets in the event of divorce and are only enjoined to be ‘fair and just.’ This judicial discretion has been most consistently exercised to validate separate property with strict property law principles applied (Adekile 2017). Which means that title goes to the person whose name is on the receipt or title deed. Nevertheless there have been a few cases where compelling evidence of contribution by the female spouse have led the courts to make property divisions in her favour. Compelling evidence including evidence of active participation in her husbands business. See Kafi v Kafi (1986) and Egunjobi v Egunjobi (1976). The case of Akinbuwa v. Akinbuwa (1998) established that the court shall have regard to what is fair and equitable based on the evidence adduced by the parties at the trial.

Nigerian marital property laws are in fact gender neutral and this means that an economically weaker husband could make a similar claim for division of marital property against his wife in the event of a divorce and succeed. And what do you want to bet that he will probably have loads of evidence? The applicant in the Radmacher case was in fact the husband. Now in an ideal world men would behave like Paris Hilton’s beau who when asked if he was going to sign a prenup said “Of course, its the gentlemanly thing to do.” But as we all know the world is not an ideal place and financially secure independent women should be able to protect their assets from predatory men.

If you are that type of Nigerian woman please have your husband to be sign a marital agreement especially if he is going to join you in your business as is often the case (women love letting a man take over, don’t we?) – it could be a prenup or a postnup. Husbands have made application for sharing of assets in the Nigerian High Courts (there is a case I can’t remember right now decided in the High Court of Benin, will look for it) and while none of the applications has been granted yet and no case has gone to the supreme court its only a matter of time. Women are increasingly the breadwinners (if not head of household) in Nigeria. And if you can’t get him to sign one whatever you do DO NOT buy stuff and put your husbands name on the receipt. If he needs that kind of ‘sign of affection’ he may be more interested in your money than your love and happiness.

Of course each marriage and each case is different. You are not required to follow my advice. Maybe your marriage is genuine and your husband is your best friend. That however doesn’t mean that his family are your friends. Its also a feature of Nigerian customary law regime for kinsmen to come evict a widow and claim their ‘brother’s’ property as soon as he dies. While the Supreme Court has confirmed a widows right under customary law to live in her late husbands property in Nzekwe v Nzekwe (1989) and Anekwe v Nweke (2014) not everyone has the money or motivation to go to court to uphold those rights. Some husbands routinely put all marital assets in their wife’s name to avoid the drama. But if a woman does the same thing she may find her husbands kinsmen dispossess her if (God forbid) her beloved husband should die before her.

Shine your eye sister.

(And if you are a Nigerian or an African man living abroad and marrying in the west you most definitely should get a prenup. See what happened to Emmanuel Eboue.)

Till soon again.

 

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