ARE PRE-NUPITAL AGREEMENTS COGNIZABLE, LEGALLY ENFORCEABLE AND VALID UNDER NIGERIAN LAW? By Israel Olawunmi

By Israel Olawunmi

Have you ever asked yourself, why upon the dissolution of the marriages of foreign celebrities, they tend to share their properties between themselves. From Mike Tyson, Seal, Tiger Woods, Jeff Bezos, Roman Abrahimovic to Emmanuel Eboue inter alia provide good examples.

This is possible because of the terms of a possible prenuptial agreement the couples of the various marriages entered into before entering into their marriage contract making it possible for each of them to determine and ascertain their individual rights in property upon the dissolution of the marriage either by divorce or death sometimes. In fact, it was reported recently, that British Singer, Adele may pay Ex-husband, Simon Konecki, half of her £140 Million fortune to finalise their divorce.

A prenuptial agreement, ante-nuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is an agreement made by a couple before they marry concerning the ownership of their respective assets should the marriage fail.

Premarital agreements are a common legal step taken before marriage. A prenup establishes the property and financial rights of each spouse in the event of a divorce.

A prenuptial agreement is a written contract created by two people before they are married. A prenuptial agreement typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.

They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well. It should not be confused with the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintaining of dynastic families

Prenuptial agreements are recognizable and common practice in United States of America, Netherlands, Canada, Belgium, France. Laws however, vary amidst both states and countries in both how to draft them and in whether they will enforce such agreements

The big question however, is if it is valid and legally enforceable in NIGERIA because apart from the fact that such is rare and not common among Nigerians, there are few cases with respect to this

Section 72(2) of the Matrimonial Causes Act, expressly provides:

“the court may…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”

The above attests to the fact that prenuptials are recognised under Nigerian Law if it is considered just and equitable.

By way of recapitulation, the net result of that provision is that a pre-nuptial agreement would be one of the things the judge would look at when making a settlement order, and if in the court’s opinion, the agreement is just and equitable, it will be upheld

The above as clearly enunciated by Justice Raphael Roland of the Court of Appeal in the case of Akinbuwa v Akinbuwa (1998) 7 NWLR 661

The Court of Appeal impliedly pronounced on the validity of a pre-nup/post-nup in OGHOYONE v OGHOYONE (2010) 3 NWLR (Pt. 1182) 564, where it was held that the trial court was right to have held that the respondent had a joint interest in a property belonging to the parties because it was not referred to in the pre-nuptial agreement the parties made.