Introduction
In today's society, the dissolution of marriages, whether through divorce or the death of a spouse, frequently presents challenges related to the equitable distribution of assets acquired both before and during the marriage. This situation often leads to emotional and psychological trauma for the involved parties, particularly when the court's decision on asset division diverges from their expectations. To address this difficulties, the Matrimonial Causes Act offers provisions for the validating and enforcing prenuptial and post nuptial agreements.
Definition of Pre & Post Nuptial Agreements
A prenuptial agreement is a contract made between two individuals before marriage that establishes the rights to property and support in the event of divorce or death. These agreements empower the intending couple to select and control many of the legal rights they acquire upon marriage and define the outcomes should their union dissolve.
A post nuptial agreement is a contract agreed upon by spouses after their wedding, outlining the ownership of financial assets in the event of divorce or death. Unlike prenuptial agreements, which precede marriage, postnuptial agreements are crafted after the legal union of the spouses.
In some countries, prenuptial agreements not only outline the provisions for divorce but also protects properties acquired during marriage such as in cases of bankruptcy. The clauses in a prenuptial or post nuptial agreement often supersede the laws governing marriages under the Marriage Act, including those addressing the division of property, retirement benefits, savings and the right to seek alimony (spousal support). These agreement establish agreed-upon terms that provide certainty and clarify the parties' marital rights.
Are Prenuptial and Post nuptial agreements enforceable in Nigeria?
Although there is no reported Nigerian case law on prenuptial or post-nuptial agreements as they are not commonplace in Nigeria, these agreements are generally considered valid if the general terms of a contract are complied with. This validity hinges on the premise that the parties involved freely entered into the agreement.
Section 72(2) of the Matrimonial Causes Act, 1970, acknowledges the right of parties to enter into prenuptial and postnuptial agreements. However, the validity and binding nature of these agreement are subject to the court's discretion. Such agreements are among the key documents a court will consider when making a settlement order. The court will uphold the contents of these agreement only if they are in accordance with the law and deemed just and equitable under the circumstance.
Can a Prenup or Postnup be invalidated?
A prenuptial or a post nuptial agreement may be invalidated if it is considered unfair or includes illegal terms. The court holds the authority to revoke or invalidate agreements that are poorly drafted, signed without adequate representation, signed under coercion, or made without full disclosure of property.
Matters not covered in a prenuptial or a post nuptial agreement.
Regardless of the terms of the prenuptial or post nuptial agreement, the Court has the supreme authority to determine certain matters during a divorce petition, and this cannot be overridden by the Prenup or Postnup. These include:
1. Child custody or visitation matters
Under the Matrimonial Causes Act, in deciding child custody and visitation matters, the interest of the child is the paramount and cannot be overridden by the provisions of a prenuptial or postnuptial agreement. For instance, under several state laws such as the Ondo Customary Courts Law, the court may grant an interim order of custody to the mother if the child is very young and not yet weaned, even if she is found culpable of the facts relied upon by the Petitioner as constituting the ground for the petition for a decree of dissolution of marriage.
Further, the court may deny custody to both parents if it determines that neither can provide the best care for the child. In such cases, custody may be awarded to a guardian, typically a relative. Section 70 of the Matrimonial Causes Act makes it clear that custody should be based on the child's best interest. The child's interest and welfare supersede any local custom and have overriding consideration.
2. Child support and maintenance:
In proceedings concerning the maintenance of a party to a marriage or the children of the marriage, the court may make an order that it deem appropriate, taking into account the parties' means, earning capacity, conduct and all relevant circumstances irrespective of the terms of the prenup or postnup.
Conclusion
Currently, there are no decided cases in Nigeria regarding
prenuptial or post nuptial agreements. However, intending couples
are at liberty to enter into such agreement which can help protect
one spouse from the other's debts, safeguard inheritances and
provide for a clear division of assets, including complex financial
assets. These agreements also aid in ensuring a fair division of
personal property in the event of death. While prenuptial and
postnuptial agreements are recognised in Nigeria, their enforcement
remains subject to the court's discretion as contained in the
Matrimonial Causes Act of 1970.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.