The reality of today, is that there is a growing increase in the rate of divorce. In Nigeria, settlement of assets upon divorce rests upon the discretion of the court which is guided by the vague yard stick of what is ‘just and equitable’. The prenuptial agreement having clear and precise terms for settlement in the event of divorce, is certainly more desirable than the unpredictability and uncertainty that may arise in court settlement.
We live in an age of entrepreneurs, where more persons are business minded and investment forward. It is not surprising therefore that more persons have usually acquired a number of assets before marriage. With the growing rate of divorce, there comes a steady worry with regards to what may happen to these hard earned assets in the unlikely event of divorce. As a result, there is a growing interest in prenuptial agreements and its validity amongst intending spouses.
Prenuptial agreement also familiarly known as “prenup” is a type of contract entered into by couples before marriage, usually setting out provisions for division of assets, inheritance and other such financial provisions, for the spouses (and/or children) in the unlikely event of a divorce or a separation.
This paper discusses prenuptial agreements, its legality, validity and enforceability in the Nigerian background.
BRIEF HISTORY ON PRENUPTIAL AGREEMENTS
The prenuptial agreement is not a creation of modern sensibilities, its existence and recognition dates as far back as thousands of years ago. The ‘ketubah’ , for instance, is a Hebrew marriage contract that dates back over 2,000 years ago and was one of the first legal documents giving rights of legality and finances to women.
Between 1461 and 1464, Edward IV reportedly also signed a prenuptial agreement with Eleanor Butler, according to Michael Miller’s “Wars of the Roses,” and Elizabeth Oglethorpe required General James Edward Oglethorpe to sign a prenuptial agreement protecting her property rights before their marriage in 1744, according to “The Manor of Bishop’s Ockendon.”
The recent global trend towards popularity of pre nuptial agreements can be traced to the Hague Convention, on the Law Applicable to Matrimonial Property Regime which gave legal approval to global application of pre- nuptial agreements.
The prenuptial agreement has long been recognized as valid in numerous countries including but not limited to, European countries such as France, Belgium, Finland and Norway, Asian countries such as Thailand and North American countries like United States and Canada. In Nigeria, the implementation of prenuptial agreement by intending spouses is still a relatively new concept that is not yet widely executed.
ADDRESSING THE STIGMA ATTACHED TO PRENUPTIAL AGREEMENTS
Before delving into the legality and enforceability of prenuptial agreements in Nigeria, it is important to first address the stigma that is sometimes attached to this type of contract.
When dealing with prenuptial agreement the most prevalent issue that arises is usually on how the other intending spouse may perceive the intent to sign such agreement. Due to the nature of the agreement, entering into a prenuptial agreement runs the risk that the other party may view it as entering into a marriage while already courting divorce.
This misconception arises from the fact that a lot of persons do not realize the full intent of the prenuptial agreement. The prenuptial agreement is a form of pre-emptive measure that goes past ‘anticipating’ a divorce and delves more towards being a forecast that ensures stability in the unlikely event of any future instability. An apt comparison is how getting a life insurance or property insurance does not mean hoping for death or damage to property. In the same way, the prenuptial agreement is a measure against something that is possible or feared but not hoped to occur.
THE LEGALITY OF PRENUPTIAL AGREEMENTS IN NIGERIA
When talking about the legality of prenuptial agreements in Nigeria, a prenuptial agreement like any other formal contract is valid taking into consideration our existing laws. In Nigeria, the core law regulating the settlement of property upon divorce is the Matrimonial Causes Act. The Act does not preclude intending spouses from entering into a contract that regulates settlement in the event of divorce.
Consequently, the prenuptial agreement is a legal agreement binding on the parties, once both parties have agreed to be bound by it and there is no form of duress, misrepresentation or fraud. When contracts are voluntarily entered into by parties, they become binding on them based on the terms they have set out for themselves.
Though the Matrimonial Causes Act does not stop parties from entering into prenuptial agreements, from the provisions of the Act, the enforcement of such agreements rests solely on the court.
ENFORCING PRENUPTIAL AGREEMENTS: THE ROLE OF THE COURT
The prenuptial agreement does not and cannot circumvent or oust the jurisdiction of the court. Section 72(2) of the Matrimonial Causes Act states that :
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’
Simply put what this means is that, though the prenuptial agreement is a valid contract in Nigeria, its enforceability relies largely on the court. In Nigeria upon the dissolution of a marriage the final decision on the settlement of assets and property lies with the court, as such it is a judge that has the final decision.
To ensure justice and equity, once there is a valid existing prenuptial agreement, the judge will usually take it into consideration and uphold the contents where no party was encumbered by any fraud or misrepresentation. The Supreme Court was crystal clear on this point in the case of Cannitec International Co. Ltd v. Solel Boneh Nig Ltd where it stated that, where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract and to give effect to their wishes as expressed in the contract document.
The key point here is that the prenuptial agreement like any other type of contract must be a ‘valid’ contract before it will be enforced by the court.
MEETING THE TEST OF VALIDITY
The Supreme Court in BPS Construction & Eng. Co Ltd v. F.C.D.A have stated that:
To constitute a binding contract between parties, there must be a meeting of the mind often referred to as Consensus Ad Idem. The mutual consent relates to offer and acceptance. An offer is the expression by a party of readiness to contract on the terms specified by him, which, if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer.’
A valid contract exists between parties when a valid offer and valid acceptance is identified, also when parties are in agreement on all material points, a valid contract exists. Apart from there being offer and acceptance, for a prenuptial agreement to be valid before the law, the offer and acceptance must be voluntary, that is, parties must have entered into the contract voluntarily.
Where parties have entered into agreement voluntarily and there is nothing to show that such agreement was obtained by fraud, mistake, deception or misrepresentation, they are bound by the terms of the agreement. Additionally, for prenuptial agreements to be valid before the law, it must not foster terms that are contrary to public policy. A contract may be against public policy either from the nature of the acts to be performed or from the nature of the consideration. The courts will not enforce a contract contrary to public policy and this has been made succinctly clear in the case of Huebner v. Aeronautical Industrial Engineering and Project Management Co Ltd ( AIEP/DANA) where it was clearly stated that:
…Where a transaction is on the face of it, or from facts adduced in evidence or the surrounding circumstances, apparently illegal, the court must act to protect and enforce the law of the land. ’
Finally, the core point is that the prenuptial agreement must be a contract which is fair, equitable and in accordance with the law, before it will be enforced by the court.
In Nigeria, the settlement of properties in the event of divorce and in the absence of prior agreement, relies largely on the discretion of the court. The reality is that there is no precise yard stick to which this discretion is employed. Though the court may usually take into consideration the duration of the marriage, age of children of the marriage and contribution of parties to the property, having a prenuptial agreement with clear and precise terms on these areas is more beneficial to both parties. The prenuptial agreement aims at fair division of assets that is in the best interest of both parties. Furthermore, having a legal prenuptial agreement which can be enforced by the court is time saving and cost effective as it eliminates the long and tedious legal battle of court settlement in divorce proceedings. In numerous countries where the prenuptial agreement is implemented, there are laid down laws that properly govern the agreement, its limitations and its enforceability. Though the Nigeria Act does not prevent prenuptial agreements, at the same time there are no precise laws for governing its implementation. With the growing rate of divorce, there is a need to leave behind the idealistic approach and for our laws to lay down clear cut guidelines and rules that will explicitly govern the implementation and execution of prenuptial agreements. The prenuptial agreement which embodies the adage ‘to always hope for the best but also have a plan for the worst’, is the reality which aims promote stability amidst the growing realities of divorce and separation.
 Efemena O. Ighorimoto LL.B; B.L
 SC Ifemeje, ‘A Case for Global Enforceable Prenuptial Agreements’ Nnamdi Azikiwe University Journal of International Law and Jurisprudence Vol1 (2010) P.152
 Matrimonial Causes Act Cap M7, Laws of the Federation of Nigeria (LFN) 2004
 See the case of Enemchukwu v. Okoye ( 2018) All FWLR Pt 929; Per Ogunwuniju JCA at P247, Paras. F-G
 (2017) All FWLR 9Pt 891) 900 SC; Per Nweze JSC at P 921, Para. B
 See also Oduye v. Nigerian Airways Ltd (1987) 2 NWLR (Pt. 55) 126
 (2017) All FWLR (Pt 878) 405 SC at Pp. 429-430, Paras G-D
 See also Billiante International Ltd v. N.D.I.C (2011) All FWLR (Pt 598)804, (2011) 15 NWLR (Pt,1270) 407; Okubule v. Oyagbola (1990) 4 NWLR (Pt.1407) 723
 See Cannitec International Co. Ltd v. Solel Boneh Nig Ltd (2017) All FWLR 9Pt 891) 900 SC
 Edilcon (Nig) Ltd v. U.B.A Plc (2017) All FWLR (Pt 901) 581 SC, Per Galinje JSC at P.610, Paras. C-B
 (2017) All FWLR (Pt. 903) 1000 SC