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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How To Register a Statutory Marriage in Nigeria

  • Marriage is registered at a local public registry or the marriage registry usually found at every local government secretariat
  • The intending couple files a Letter of Marriage Intention and pays of a fee of Naira 2,000.
  • A person under 18 years of age, who wishes to register a marriage, is required to present a letter of consent from his or her parents.
  • The registry will display the Letter of Marriage Intention for 21 days on a public notice board.
  • Provided that no objection to the intended marriage is made during the 21 day period, a couple may then register their marriage.
  • Birth certificates or official documents showing the ages of the couple are required together with the results of HIV and genotype tests.
  • A divorcee must produce a divorce certificate, while a widow or a widower is required to present the death certificate of the late spouse.
  • A marriage registrar may witness the exchange of oaths by the couple.

(H/T Australian High  Commission. Beautifully simple.)

 

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A Review of Oluremi Obasanjo’s Bitter Sweet: My Life with Obasanjo (From The Archives)

December 10, 2008 at 10:25am

OLUREMI OBASANJO: PORTRAIT OF A FEMINIST POSTER GIRL?

By Lesley Gene Agams

A privileged idyllic childhood, a precocious adolescence and a striving dogged socially conscious woman. That is the sense I get of Oluremi Obasanjo from her recently released book Bitter Sweet: My Life with Obasanjo. Although she often comes across as naïve, gullible and coarse there is no masking the raw ambition and sense of achievement lurking covertly like a cunning animal.

Bitter Sweet offers a rare insight into a young girl’s life in pre independence Nigeria. Her story of going off to Lagos with only a female cousin was a surprise, as was her sneaking away from an event in Ibadan to visit her beau’s house. Even more astonishing was her un-chaperoned trip to London to meet Obasanjo before they were even married. It’s rare to hear such honest accounts about young women of that era enjoying such freedom. To hear it told by the social matrons, back in 1950 all girls were on chaperoned lock down till their bride price was paid and rings on their fingers.

Oluremi’s story also offers important insight for the Nigerian women’s movement and victim’s activists all over the world. It provides a rare viewpoint into the psyches of a high profile domestic violence victim and her equally high profile abuser. The question ‘why do victims stay?’ is one of the most contentious in academic and legal literature on violence against women globally. There is no agreement as to the dynamics but there is a growing recognition that victims cannot always exercise agency and walk away. This is a rare portrait of a narcissist, his codependent and their traumatized and troubled offspring.

Here we have the unfiltered voice of a victim and an abuser known all over the world. This isn’t the transcript of a case study interview where the interviewer asks leading questions or a counselor offers culturally biased speculation about the motives behind an anonymous patient’s experience. We have a cultural and social context that provides incredibly rich information. A number of commentators have compared it to a Nollywood script but this is not fiction. Why did Oluremi stay? Why does she still call this man her husband and ‘the only man I have known’?

Her story is significant because of who she was married to, her experience with Obasanjo is the experience of millions of Nigerian women. Thanks to her book we may be able to bring attention to their stories and begin a rational discourse on violence against women and domestic violence, two issues that have failed to enrage the Nigerian public or engage the Nigerian media. Oluremi is just one of the lucky ones. Apollonia Ukpabio endured 25 years of escalating violence till her skull was cracked open with a machete. Miraculously she survived. Her husband is on trial for the attack. Why did she stay? She believed God and church wanted her to protect and defend her marriage no matter what. Others have died.

The challenges of being married to Nigerian elites are especially made obvious in her narrative. It’s the story that does not get told, the male entitlement, the female consent and often the mutual infidelity. It’s really difficult to complain when living a really privileged life in a really poor environment. I know many a Nigerian matron that felt Princess Diana should have put up and shut up. The ‘old school’ belief is that a woman should marry for economic security not love, and if it’s companionship you crave find it with the women and/or your children. The wisdom of the matrons for a woman thinking of leaving her husband is territorial– don’t be foolish, why leave your turf for some other woman to take over? Fight for your matrimonial haven and sanctuary. Oluremi had a lot to fight for.

For me one of the more disquieting revelations of this book is how powerful and rich men are manipulated to accept and expect exploitation through their sexual extravagance. According to Oluremi, Obasanjo’s aunt became one of his ‘pimps’ and weak minded male that he was “he abandoned his Lugard quarters for five days because he didn’t want a divorcee, who was even a mother of two. Later, he gave in and the woman had a child…” I know people like that, they will never go to see a powerful man without ‘an offering’, usually a young pretty girl. The most disgusting personal encounter I recall was a middle aged couple that brought their 15 year old daughter dressed like a hooker to see a certain big man they wanted a favor from. I was there. I’ve often wondered about the ‘powerful’ men that fall for that one.

All families are dysfunctional and some may seem more dysfunctional than others but it seems too much of a coincidence that Obasanjo’s narcissistic, high risk behavior and mood swings only emerged after the civil war. Could he have been suffering from post traumatic stress disorder? This is not uncommon in soldiers, even Nigerian soldiers. I handled a divorce case a while back, the husband, an armed forces man, had just returned from an active mission and was exhibiting classic symptoms of PTSD. The administration couldn’t offer him any help. He refused to admit he had a problem, his wife did not know how to handle it, his marriage collapsed under the strain. He reacted pretty much the way Obasanjo did, contesting custody, refusing to pay child support and becoming increasingly abusive; contemporary Okonkwo figures, tormented, paranoid and insecure, things falling apart around them.

All that being said there is a lot that makes me uncomfortable about this book, it’s no master piece but its not meant to be. I found Oluremi’s total lack of self consciousness very disturbing, she seems to be saying of course I slapped that girl and of course I bit that woman and of course I made embarrassing scenes and even fought a truck full of soldiers, like it’s all normal. I found that eerie. The scene on page 66 where she attacks Mowo Sofowora, like a frenzied mother hen and then having fended off the interloper, clucks protectively around her chicks is totally dissonating and disturbing. All narrated like it’s totally normal, there is no moral debate as to the appropriateness of action. She is not the only female (or male) I know that considers her response to this sort of ‘provocation’ perfectly normal and unquestionably right. I find that frightening and sad.

Even more disturbing evidence of a venal, anachronistic world view was her calling Murtala’s ADC the day after she was informed of her child’s death and being morbidly counseled to see the incident as some sort of answer to her prayers to be back in Obasanjo’s house. Just access to this ‘big powerful man’ who happened to be the-father-of-her-children-who-he-had-custody of had become a goal. Her disappointment and resentment towards her sister in law who precipitated her hasty ouster five days later seemed to coldly over shadow her grief at losing a child. Her insecurity is overwhelming; she is willing to forgive Obasanjo the death of her child but not his sister. Her apparent devotion to him despite everything borders on an obsession. Is she a cold ruthless woman or the traumatized victim of a narcissist?

Then there was the bizarre description of their courtship, she presents herself as a passive and entitled recipient of Obasanjo’s courting. He wrote her letters, sent her books and gifts and eventually she said yes. Surely that’s not the whole story. What exactly did the shoeless son of a village drunk say to the spoilt railway master’s precocious daughter that convinced her that Obasanjo was worth waiting seven years for? It’s obvious he was a man on the fast track to power but Oluremi’s narrative while indicating that does not provide any insight into the motivation for any of his actions. Why did he want to study geology? Why did he change his mind for a military career? Is she absolving herself of all responsibility or did she really not know? Or is she just not telling? Loyal to the bitter end?

Whatever her motives for staying or for telling her story now Oluremi did not deserve the treatment she received from her husband. No man or woman deserves abuse and violence, and all women deserve the right to say to the man they married ‘I can’t live with you anymore’ and still be humanely treated with their children as Nigerian citizens protected by a constitution. We need to stop the abuse. We need to break the cycle of violence.

I have reaffirmed or learnt a number of things from reading this gripping account of lives interrupted;

1. There is an urgent need to review the Matrimonial Causes Act and extend its jurisdiction to women married under customary law; it is an archaic piece of legislation that offers little protection to women considering divorce or separation and their children. The customary law systems that the majorities of woman have access to in Nigeria are heavily biased against women and make seeking separation or divorce traumatic and humiliating.
2. We desperately need to introduce parenting skills to our education curricula. Children are often at greatest risk of long term harm and damage from their parent’s ignorance. Teaching children parenting skills is as important as teaching them to say no, zip up, life skills or whatever else we choose to call sex education. Teaching them religion is not enough.
3. The Nigerian armed forces need to increase their transition support for veterans returning from war, especially the psychological support they provide. Wars are dehumanizing and brutalizing, veterans and their family members need assistance re-integrating after prolonged exposure to the violence and brutality of armed conflict and barracks life.
4. Nigerian media need to learn how to write more sensitively about women and women’s issues. Most of media commentators including female commentators brushed aside her story and condemned her for telling it. Stark testimony to how such tragedies can play out to an inevitably sad outcome while hidden in plain view.

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Child Custody in Nigeria FAQ: Who Owns The Child? II

‘Ownership’ of children is a feature of many customary laws in Nigeria.

Customary laws vary from one tribal group to the other. In some Igbo-Nigerian communities payment of the bride price determines ‘ownership’ of children. In ‘An Anatomy of Female Power’ Chinweizu has previously argued that the payment of bride price in Nigeria does not entitle the payer to the woman but rather to the fruit of her womb and I agree with him.

Among some Igbo-Nigerian groups and in Umuaka where I come from and grew up in particular under tribal laws where a marriage is not formalised and a bride price is not paid any child a woman bears ‘belongs’ to her father’s house and enjoys full inheritance rights. Likewise, if a woman left or divorced her husband she had to repay him the bride price her paid or any children she had thereafter ‘belonged’ to him, no matter who was the biological father. However, these tribal laws have been held to be repugnant to natural justice, equity and good conscience and are not usually enforceable by the customary courts anymore. Likewise, tribal laws that deny mothers access or custody without a consideration of natural justice, equity and good conscience are repugnant. However, it takes a good knowledgable lawyer to make that argument before the court.

In Yoruba-Nigeria the practice was that a child could claim a right to inheritance so long as the father had acknowledged him during while the father was alive. Sharia law, which is classed as a customary law in the Federal republic of Nigeria, apparently privileges mothers in custody issues whether they were married or not.  Customary courts just like statutory courts have a lot of discretion and it all depends on the arguments they are presented to them.

Lagos State is the only state in Nigeria that has created a family court procedure to deal with disputes relating to guardianship, custody and adoption that is not related to matrimonial causes in its Child Rights Law 2007. So if you are in Lagos and are unmarried and have a custody matter that is the law to refer to.

Nevertheless there is still a lot of confusion regarding children that are born to parents that were never married under statutory or customary law. There is also an increase of children born to parents that are not married under statutory and customary law. There seems to be a presumption that once a father is named on a birth certificate as such it secures his ‘rights’ to the child. I figure the courts will be busy untangling those complications for a few decades to come.

I’ve heard from a lot of people that the Social Welfare Office’s, which are increasingly called upon to decide questions of custody and maintenance in cases where the parents were never married have been ruling that once a child is 7 years old the father can take custody. This is wrong and dangerous and needs to stop. The law remains clear that the best interest of the child is paramount in deciding custody and neither parent  is entitled to automatic custodial rights. Both must show that they can meet the best interest of the child and not only that the other parent cannot.

In a decided case the father when asked what arrangements he had made for the children whose custody he was seeking said they would stay with his ageing mother in the village as opposed to staying with heir mother on the university campus where she lived and worked. The judge despite his conservative leanings ruled the children live with their mother even though he could not bring himself to grant her custody.

Perhaps the confusion lies in the meaning given to the word ‘custody.’ Custody is not ownership. We’ll consider ‘custody’ in my next post. I’m already over my 500 word limit. Or guideline.

Chao

mdv102ts

 

Living Under the Patriarchy: Burying A Husband

My best friends husband died recently. He was from Oginibo in Delta state, an Urhobo. She is from Eket in Akwa Ibom state, an Ibibio with a Russian mother. It is easier to get from one to the other by boat through the creeks. We had planned a regatta for her traditional wedding. I guess thats never going happen now.

He died. Just like that. He was 52. Kidney failure they said. Most of us didn’t even know he was sick. I haven’t seen my best friend in awhile. Life. You know how it is. I only heard he was in the hospital a week before he died. When I heard I felt a worm of fear. He wasn’t the type that went to the hospital. If he had a headache he took paracetamol. If it persisted more than a week he took something for malaria. He was a big hardy stoic kinda guy.

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Daniel Mowoe Opuama (17 September 1963 –  23 February  2016)

According to Urhobo tradition he had to be brought back to his ancestral village for burial even though he never lived there. Even though his wife and children had only visited the place once in the 16 years they were together. Even though he told his wife during one of those conversations he wanted to be buried wherever he lived. Even though she is the next -of-kin. Even though this is the 21st century.

So off on a 448km journey to Oginibo we went last Friday. Oginibo is 17 km SE of Warri somewhere in the Delta near the Forcados River. A google search isn’t very helpful. There are no population figures for the place and it isn’t actually named on google maps. One site said it has a ‘small population’. I came across a picture of their town square. Real native country.

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Oginibo Town Square (Source Oginibo Community Facebook Page)

When Delita, The Duchess, heard the burial was to be in Urhobo land and not in Abuja as previously proposed she went into a panic.

“Maya, I heard all sorts of horror stories. I heard they will lock you up in a room for 3 months and make you shave your hair!”

Many other friends warned that the natives would use the opportunity to milk the bereaved family. They told horror stories of their own. Stories of shake downs, blackmail and child napping. It cost a lot to bury a man. (Every where in Africa it costs less to bury a woman.) Apparently the Urhobo have a taste for expensive burials.

“They will ask you how your husband died.” Maya’s mother-in-law tried to reassure us. We didn’t know what to think but it seemed easier to let it go and bury him where ever his kinsmen wanted.

It was like planning a invasion. Money is tight so we decided we weren’t going to feed or water the natives. None of our business. We did some research on Urhobo and tribal jurisprudence. A ray of hope emerged – Maya and Dan never had a wedding under tribal laws! They got married in the registry. If the natives tried to impose any repugnant widowhood practices we would remind them of that.

While Maya’s kinsmen could not formally attend her brother would come to represent and protect her. Max our brother from another mother was also coming. A woman’s greatest protection in her husbands house is her own kinsmen. Thats why no one wants their daughter to marry far away. How else could they keep an eye on her and ensure her husband didn’t sell her into slavery or abuse her. Or something.

We also called in some favours with a brother in law for some heavy calvary. Just in case.

The drive down to Warri was pretty uneventful. We spent the night in Warri and ate bang soup for dinner. The Jubilee Conference Centre where we stayed was built two years ago. The Catholic Bishops of Nigeria decided they wanted to hold their conference in Warri but there was no hotel good enough for them so they just built their own.

The drive from Warri to Oginibo was like a time warp. The jungle just got thicker and thicker and the roads narrower and narrower with each kilometre. Our men were late joining us and we had to leave the morgue without them.

I called Max.

“Max, where are you? We’re on our way to Oginibo.”

“Still waiting for our car.”

“Max. You people can’t do this to us. You have left three women and two children to go into the jungle to face the natives. You guys need to catch up. NOW. please.” I sounded calmer than I felt.

“Where’s the calvary? Weren’t they supposed to meet us along the way? Where are we sef?” Maya asked.

Compulsively I reeled off the names of each community we passed – Ovwian, Ukpedi, Jeremi, Ayagha, Imode. And invoked all the deities I knew – OkwaraAgu, Ezenwanyi, Amadioha, Jesus, God. Angel Gabriel, and Michael.

We arrived Oginibo and the deceased’s homestead escorted and surrounded by natives speaking in Urhobo. Then they said we should come in for a family meeting. We sat down in the hall while the natives argued. Ever so often they gestured towards Maya. It was pretty obvious what they were arguing about. I chided myself. Why didn’t I think of bringing along an interpreter!

“Please we are educated.” one elderly woman said to the squabbling men in English.

“Hian.” I thought to myself.

Then the call came.

“Madam, this is Captain So So and So with the Nigerian Army. What is your location please?”

Our calvary had arrived! Within minutes three Hilux trucks arrived with over 30 soldiers and took up strategic positions around the compound. We sat in the hall, relieved but still pensive and waiting. Their arrival seemed to bring out a couple more natives who walked in authoritatively, greeted us ever so briefly and said something to the squabblers that seemed to escalate the discord briefly before walking out again. Later we learnt they came and stopped what was indeed an attempt to make Maya undergo some sort of trial by ordeal.

Then I looked up and there was Max and Yuri standing in the doorway! Our men had arrived. They must have broken all speed limits to get there so quick. Sometimes relief is spelled M-E-N. The mood changed. Drinks, kola and money were brought out and presented in welcome. Women do not deserve a formal welcome.

It was smooth sailing after that and the burial proceeded without further ado. No repugnant demands, no strange and demeaning widowhood practices. They invited us back to the homestead for entertainment but we declined. The Army escorted us all the way  back to Warri and we high tailed it to Benin City to spend the night before departing for Abuja the next morning.

Mission accomplished. Thank you father. We are grateful.

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FREE MARRIAGE ADVICE ON FRIDAY FEBRUARY FOURTEENTH

FEBRUARY 14 – Valentine’s Day. Lover’s day, the day of Love. I did the hand made cards, anxious hearts, chocolates and roses when I was young. Now I’m mildly embarrassed at my younger self.  Every time my new hormones reacted to the pheromones and fine genetic features of a male of my specie I thought  myself madly in love.

What is love?  Some people think love is the bond between mother and child, some think its the sexual attraction you feel when you meet some body, some people say that love is a verb – how you act towards some body.  Some people think its spiritual, metaphysical, magical, other worldly, inexplicable. Even the Bible says so, right?

I was as confused as everyone else till I read the January 2008 Time issue on the science of love. My life has never been the same. You can read a pretty good summary here. I wish someone had explained love to me a bit earlier. I can be melodramatic and intense. But I wrote some great poems in those days of ignorance. Find one here.

Some women are waiting for someone to send them a royal Valentine hamper from Fortnum’s or  buy them a trip to Dubai. Some will be happy to get dinner, a card or a plastic rose. Guys are running, avoiding phone calls. Runs babes are sorting the Big Boys from the men. Lots of boys and girls are regularly disappointed on Valentine’s Day.

According to a 2011 report more divorce petitions are filed in the US the day after Valentine’s Day than any other day in the year. In the absence of reliable records I’m going to track my blog stats to see whether I get more search engine hits and enquiries on ‘divorce in Nigeria’ on that day too. Is there more discontent in the air?

I’m a scientific kind of female.

“Events occurring in the brain when we are in love have similarities with mental illness.”

Don’t we all know that feeling?

So which do you think you are feeling? Lust? Attraction? Attachment? Or is it just plain need and fear that’s keeping you in bondage in a loveless abusive relationship? Abuse isn’t only physical. If your spouse constantly creates an atmosphere of rigid control and terror you may be in an abusive relationship. Even if he is providing everything.

Will your relationship or marriage survive Valentine’s Day?  Will that slap you receive, literal or figurative, when you innocently ask what he got you for Valentine’s be the final straw that makes you say ‘enough is enough’.  Will you finally realize that his isolating you from family and friends is abusive behaviour?

I’ll have a tweet meet @MzAgams on February 14th and 15 give some heartfelt and sincere marriage advice to the many broken hearts that may finally decide on Valentine’s Day – the day of love – they deserve better than an abusive spouse.  I’ll answer all your questions about family law, matrimonial causes and child custody issues. Is 8pm good?

 

Is Rape on the Rise? Or Is It Women’s Activism?

I’ve lived in NIgeria long enough to be abe to say that the attitudes and behavior on sex, women and rape have been consistent over the past 30 years. What I think is that there is increased reporting and increased outrage from a growing middle class fueled by increased women’s activism.

That’s considerable progress. The efforts of the past 10+ years have not been in vain. The Nigerian women’s movement has had an impact. There is still so much more to be done but we can look back with a sense of accomplishment as we plan a new strategy.

I read that traditionally in some communities the penalty for rape was to compensate the father of the victim or marry her to her rapist.  A lot of research has done by Project Alert and CIRRDOC into the corelates of various forms of violence against women.

Women are beginnig to speak up and speak out, and the media is picking up their stories. Like this one from Enugu about a group of women that said enough is enough to male impunity. The ABSU Rape Walks in Lagos, Abuja and Abia last week were successful despite disruptions. They certainly rattled the police.

Now we need to make the law work for them.  How we do it is the next big challange.