By Ikechukwu James Orji
Marriage, beyond being a personal and emotional commitment, is also a legally recognized partnership with significant financial and property implications. When two individuals decide to get obligations become intertwined. While marriage traditionally symbolizes unity, it does not erase the individuality of each partner, especially concerning property and financial responsibilities. In many instances, the lack of clear agreements regarding ownership and management of assets can lead to protracted dispute in the event of a divorce, separation, or the unfortunate demise of a spouse.
To mitigate the uncertainties associated with property division and financial responsibilities couples may choose to formalize their intentions and expectations through agreements made before or after the marriage. These agreements are often referred to as prenuptial and post-nuptial agreements. Pre-nuptial agreements are entered before the marriage while post-nuptial agreements are entered after the celebration of the marriage.
Both agreements aim to clarify financial arrangements, protect individual assets, and provide a roadmap for asset distribution in the event of marital dissolution.Globally, pre-nuptial agreements have become increasingly popular, particularly among individuals with significant wealth. In some jurisdictions, these agreements are automatically enforceable once they meet basic contractual requirements.
However, in Nigeria, their enforceability is subject to judicial discretion making it necessary for couple to understand the framework within which such agreements operate. This article explores the legal standing, purpose, and enforcement of pre-nuptial agreements under Nigerian Law.
This provision underscores that while courts may enforce a prenuptial agreement if deemed just and equitable, they are not compelled to do so. Courts are at liberty to rely on, modify, or disregard the agreement when resolving marital disputes.In Oghoyone v Oghoyoneiv the Court of Appeal upheld the trial court’s decision to honor the terms of a pre-nuptial agreement.Factors Considered by CourtsWhen considering the validity and enforceability of a pre-nuptial agreement, Nigerian courts may consider the following factors:1. Fairness and reasonableness:
The court would have to look into the terms of the pre-nuptial agreement to determine whether they are fair and reasonable, taking into account the circumstances of the parties. The court always look out and protects the weaker party in an agreement. Where the terms are exploitative or unfair the court would not enforce such pre-nuptial agreement.2. Best interest of the child(ren) of the marriage: Where there are children in the marriage the court would be forced to consider whether their interest and welfare are protected in the pre-nuptial agreementv. Section 1 of the Child Right Act 2003, provides that the best interests of the child shall be the primary consideration in any decision-making involving a child.3. Public policy:
Another factor the court has to consider in enforcing a pre-nuptial agreement is public policy. Where the agreement is against public policy or contradict any law in operation then the court would not enforce such pre-nuptial agreement.Whether pre-nuptial agreement can be applied under customary law marriage?The wordings of Section 72(2) of the Matrimonial Causes Act clearly limit the enforceability of pre-nuptial agreements to statutory marriage.
It provides that the application “The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of property dealt with by ante‐nuptial or post‐nuptial settlements on the parties to the marriage, or either of them”.
Consequently, such agreements are unenforceable under customary or Islamic law marriages.i See Carlill v Carbolic Smoke Ball Co. (1892) 1 QB 256, African Continental Bank Ltd. VAjigbotito (2011) 10 NWLR (Pt. 1255) 301, and Ogbonna v. Ogbonna (2015) 15 NWLR (Pt. 1483)ii Cap S8, Laws of the Federation of Nigeria, 2004iii Hyman v Hyman (1929) AC 601iv (2010) 3 NWLR (Pt 1182)v See Section 71 of the Matrimonial Causes Act and Section 1 of the Children and Young Persons Act
IKECHUKWU JAMES ORJI. LL.B, BL., ACIArb., LL.M (in view)
