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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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.
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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

The Oxfam Saga Continues

“The experience of those who reported abuse, including a former Oxfam country director who said she survived a rape attempt at headquarters in Oxford, did not encourage others. Lesley Agams, who had been highly rated at Oxfam, said she was handed a dismissal letter by the man who attacked her.

The UN whistleblowers in Haiti also suffered; although they were not forced out, they received anonymous threats while the investigation was going on, and their careers did not flourish after it finished.

“They had taken a very difficult step, because it is essentially saying goodbye to your career,” the former UN staffer said. “If you blow the whistle when you are out in the field, you may never be hired again – it makes you very vulnerable.”

The Guardian

Behind the sex parties and scandals in Haiti lies a culture of secrecy and lack of diversity

 

The Gospel According To Lesley: Home vs. Nest

‘Home’ can seem so relative and so meaningless. A hotel is ‘home’ if that’s where you eat, sleep and wake up with familiar people that may or may not be ‘family.’ And by that definition so is pretty much anywhere else you carry out those functions. You may have had many ‘homes’ in your life time. Your parent’s. Your grandparent’s. Your in-law’s. Foster care. Your first flat. Your last flat.

A ‘nest’ on the other hand at once suggests something personal, unique and cosy.  If someone tells you they’re ‘nesting’ you have no doubt what so ever what they mean. A clear image immediately springs to mind. Besides, no one says ‘homing’ or ‘home making’ (unless you’re a housewife, do housewife’s say that anymore even?) and ‘home maker’ is NOT what you mean. Neither is ‘decorating.’ You’re not decorating. You’re kinda settling in with your stuff around you. Without the burden of permanency.

Do you remember a rather melodramatic post from 3 years ago about fear of commitment? You can read it  again here. So much melodrama over a 3 month commitment to a flat share but here you are 3 years later – nesting.

Then you realise that the nest is kinda small and that you get quite a few people staying over despite your cranky attempts to push everyone away. So you figure maybe its time to get a bigger nest because family and friends really matter to you.

 

 

 

 

 

The First Day of the Rest of Your Life

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Hi. Happy New Year.

Thank you for following my blog.

I’m glad that you found something useful, inspiring, enlightening or entertaining here. Because that’s all I really want to do – inform, inspire, enlighten and entertain. Especially entertain. I’m not trying to convince you that my point of view is right or wrong. I don’t know that is. I’m just sharing my point of view which can be quirky, heretical, mind blowing and impractical sometimes but always original. And always creative. And inspiring.

I want to make you think. And maybe question your assumptions. I like being subversive. I sincerely believe that nothing is sacred and anything is possible. If you can think it, you can manifest it. I also believe that I should leave the world better off than when I arrived – not worse. Yes. That could mean me or the world. Or both. I love puns, metaphors and paradoxes. I love mind games. I love challenging group think.

Freedom is my primary value.  I have high value for self direction, stimulation and universalism and low value for security, power and conformity.

I explored many routes during my journey to self determination. Religious. Philosophical. Scientific. Magical. Professional. I studied Law, The Bible, The Bhagavad Gita, The Harvard Business Review, Vogue, Zen Buddism, atheism, libertarianism, Lassez Faire capitalism, capitalism, philanthropy, philanthro-capitalism, feminism, womanism, African feminism, Afropolitanism.

I had a whole lot of teachers. I’m grateful to all of them. Even the ones that hated me a whole lot. I instinctively resist any and all attempts to bully and confine me. I respond to haters by doing more of what they hate. So I just got better and better at being me.

A couple of years ago I started studying wealth and success and came across the Laws of Attraction. I’ve always attracted good fortune, I was less fortunate in holding on to it. Or so it seemed.  Take my case with Oxfam and my career in the humanitarian sector. Right? No way. Thank god Oxfam happened. I might have still been stuck in that industry working crazy long hours for someone else – and for peanuts compared to what I earn now.

Oxfam wasn’t a fit. Ashoka was closer to a fit but still wasn’t what I wanted and they really paid peanuts. I’m doing exactly what I want to do now and earning more. As a matter of fact I’d be happy doing what I’m doing even if I wasn’t paid to do it. Yeah. I found that place. And it doesn’t involve crazy work hours, sexual harassment and someone higher up the ladder stealing my ideas. Work – life balance is built in.

It wasn’t easy to get here. I had a lot of resistance, external and internal too. After being an employee it seemed like I couldn’t possibly live well if someone wasn’t paying my salary. The first couple of years were especially scary as everything crashed around me.  I’ve had a lot of adventures in the  years since then. Thanks for sharing them with me. I’m in a good place now. In the place that I want to be – feeling good.

I had a pretty good year last year. And I’m confident that 2018 is going to be even better. Only doing the things that make me feel good. Living my best life. And still sharing it with you – to inform, inspire, enlighten and entertain. And make you think a little. And maybe laugh a little too.

Here’s to a fabulous 2018.

 

Talking About Beauty: Ayurveda & Exercise

I found out from my ayurveda therapist that my constitution vata (find out yours here) doesn’t need strenuous exercise. It just overheats the body. I never did finish that story about my experience with hot yoga. Around day 45 of my 60 day challenge I was exhausted physically and had some weird ridge growing in my abdomen.

Boy did I freak out. I was sure it was something awful like cancer and I was going to die. The therapist told me it was just my body reacting to what it did not like. The heat, the strain,  the sweat. I never did like sweat and heat and strain but thought I had to endure it because well I heard somewhere thats how thing were done.

“No” my therapist told me. “Your constitution needs calm stuff like yoga, swimming and walks outdoors.”

No wonder I could never stick to one of those hectic gym schedules. Or a running routine. So now I do 30mins of yoga and 30 mins walk or dance daily. I’m working up to an hour each.

I started my at home yoga practice really small. I went through up and downs. Some mornings I was all gung ho about it and some mornings it just wasn’t a priority and I skipped yoga. I pushed through those. I didn’t let it stop me altogether. Gradually it became part of my daily routine and I noticed that it did help me function better too. I think I’m addicted to yoga now. But as addictions go that ain’t so bad. I’m an addictive personality.

I also go dancing once a week. I’ve started salsa lessons. Love it. Love the music. And I am overcoming my biggest challenge in salsa. Letting the man lead. read about it here. And let the music lead. I love the sexual energy in Latina dance. Our Igbo dances are less about sex and more about energy and acrobatics. Or seduction. Anyway I figure that should keep things ticking along just fine. I do not want to be jumping upandan, jiggling, sweating and getting hot more than I have to.

And its about time I stop putting it off and finally take those swimming lessons. Yeah.

 

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