By M. O. Idam
On the heels of growing cases of marital crisis, legal questions have been raised in search of solutions to the issues of succession among spouses. However, in a deliberate but clever attempt to prevent the likelihood of issues in the future, some spouses enter into a prenuptial agreement before marriage.
Prenuptial Agreement (Prenup, described also as Pre-marital Agreement, Ante-nuptial Agreement or better still, Agreement Before Marriage) is an Agreement or contract entered into by two intending spouses before marriage to determine their respective rights and obligations in the event of separation, divorce or death.
A prenuptial agreement is usually made in respect of the following issues :
- Property sharing
- Financial Support
- Debt settlement
- Inheritance and other financial obligations.
- Care and provisions for the Children of the marriage, except where none is expected.
The Matrimonial Causes Act, by the provision of Section 72 (2), recognises the right of a couple to enter into a Prenuptial Agreement, but however, vests the court with ultimate discretion to consider such an Agreement in matters of property sharing, only where it is fair, just and equitable.
In Ogunyade v. Ogunyade (2011) 17 NWLR (Pt. 1277) 72 (SC), the supreme Court, emphasizing the importance of parties’ autonomy and freedom to freely enter into a contract, affirmed the validity of a prenuptial agreement and held that, as long as the agreement is entered into voluntarily, and its terms are reasonable and fair, it is binding on parties.
Gleaning from Ogunyade Ogunyade (Supra), certain conditions must be set out for a prenuptial agreement to be valid and enforceable, namely:
- Voluntary Consent: the agreement should not be secured through undue influence, fraud, misrepresentation, inducement, deceit, or coercion.
- Full Disclosure: There must be no concealment or dishonest declaration of assets. Each party must make a full disclosure of their assets to the other party before the agreement is entered into.
- Independent Legal Advice: Each party must be free to seek and must have sought independent legal advice before the Agreement is entered into.
- Fairness and Reasonableness: the Sharing of properties and other financial settlements made in the Agreement must be adjudged fair and reasonable.In Ogoyone Vs. Ogoyone (Supra), the Court of Appeal upheld the trial court’s decision, which upheld a Prenuptial Agreement, demonstrating the Court’s willingness to enforce such an agreement once its terms are reasonable and fair.
The Court of Appeal in Ogundare v. Ogundare (2021) JELR 108825 (CA) not only affirmed the right of parties to enter into a prenuptial agreement, but also emphasised that, in making such an agreement, adequate provision must be made for the welfare of the unborn children of the prospective marriage. Otherwise, the court may, in its discretion, make such orders as are necessary to protect the best interests of the child(ren) of the marriage.
CONCLUSION:
Interestingly, a prenuptial agreement is not alien to Nigeria’s jurisdiction. A prenuptial agreement is recognised under Section 72(2) of the Matrimonial Causes Act, but it is not automatically binding — the court reserves the discretion to enforce it only if the conditions listed above are present.
M. O. Idam, Esq.
