Prenup
In recent times, given the excess rate of divorce among couples, most especially celebrities, prenuptial agreements have continued to become a phrase that pops up momentarily, outlining and providing more clarity to the financial and proprietary rights of married couples in the case of a divorce between both parties.
Similarly, in Nigeria, prenups have gained more prominence and acceptance among the general public, even though there's no evidence of any Nigerian reported case law on any pre- or post-nuptial agreement.
In this article, we'll be considering the meaning and importance of prenuptial agreements in the light of Nigerian laws, the legal considerations and requirements for prenups, and the essence of seeking legal advice before signing prenups, among many others.
Prenup Meaning
A prenup, otherwise referred to as a prenuptial agreement, is a legal contract or document signed by couples before they get married. It is a legal document drawn up by lawyers on behalf of two people who plan to get married and generally goes into effect on the day of the marriage.
Typically, the point of a prenup is to define each person’s rights and responsibilities if the marriage ends either through death or divorce.
By outlining who keeps a property, who pays a debt, and who’s responsible for what, a prenup could help you protect your assets and shield you from your partner’s debts. Like any contract, a prenup could also help prevent legal disputes, possibly sparing couples years of litigation and spending much money on lawyer’s fees.
Are Prenups Valid Under The Nigerian Law?
Although, there is no specific law that states the procedure or guides the drawing and enforcement of prenups, they are valid under Nigerian law. Once the general terms of the contract are generally adhered to and the parties voluntarily enter into the agreement, it becomes binding on the parties in the event of a valid marriage.
Thus, in essence, Prenups are contractual agreement. Tobi J.C.A in Orient Bank (Nig) Plc v. Bilante International Ltd defined a contract as an agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things. For a contract to be valid, there must be mutuality of purpose and intention. In the same vein, the Supreme Court in Bilante International Ltd. v. NDIC held that "a binding contract must contain the basic elements of offer, acceptance, consideration and capacity to contract or intention to create legal relationship."
However, it is worthy of note that the extent of the validity of prenups is highly dependent on the discretion of the court.
Section 72(2) of the Matrimonial Causes Act, the law states that:
The court may... make such an 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 antenuptial or postnuptial settlements on the parties to the marriage, or either of them.
Thus, from the foregoing, the enforceability by the court of a prenuptial agreement will likely depend on the terms of the agreement, whether it was in accordance with the law, and whether the principle of fairness is observed in the process of making the agreement.
What Does A Prenup Cover?
A prenup can cover the following assets and interests of the parties to the marriage:
- Division of properties
- Spousal support
- Education and religious upbringing of the child in issue
- Creation of will and trust
- Right or ownership of a life insurance policy
What a prenup does is assign ownership to your belongings, including:
- Businesses
- Property, like cars, houses, art, jewelry, and furniture
- Money, including savings, stocks and bonds, retirement accounts, gifts, and inheritances
It can assign responsibility for the things you owe, including:
- Expenses, such as household bills, memberships, and subscriptions
- Credit cards
- Auto, mortgage, student, and medical loans
- Bankruptcies and foreclosures
It can also assign liability for:
- Attorney’s fees
- Survivor or death benefits
- The other’s income, called alimony or spousal support
But legally, a prenup can’t cover everything. For instance, there could be laws that prohibit you from including child custody, visitation rights, and child support payments in a prenup. Your lawyer might also advise against including infidelity clauses and some other things too.
Can You Get A Prenup After Marriage?
Once you have already gotten married, you cannot enter into a prenuptial agreement. However, you can still enter a postnuptial agreement.
A postnuptial agreement is a contract created by spouses after entering into a marriage that outlines the ownership of financial assets in the event of a divorce.
What Can A Woman Ask For In A Prenup?
A woman should ask for clear provisions in a prenup, such as protection of assets, spousal support, and clarification of property rights in case of divorce. Key considerations for women in a prenuptial agreement include
- Property Division
- Debts and liability
- Alimony and spousal support
- Business Interest
- Inheritance and estate planning
Importance Of A Prenup In Marriage
1. It helps to alleviate the uncertainty in marriages: with a prenup already entered into, parties have a clear understanding of their financial rights and responsibilities. This could help avoid unnecessary conflict or misunderstanding with respect to these rights.
2. It helps to ensure the protection of assets: This is important especially in situations where a party has or owns a business, real estate, or other valuable property. A marriage entered into without a prenup could potentially put the aforementioned things at risk.
3. It helps define financial responsibilities during marriages.
3. A prenup can also be a valuable tool for protecting your privacy. If you have sensitive financial information that you don't want to be made public during a divorce, a prenuptial agreement can help keep that information confidential.
Conclusion
A prenup could help protect your assets, shield you from debts, and avoid litigation. Although a prenup cannot cover everything, it does cover very important issues that will help protect spouses from the aftermath of a broken marriage.
REFERENCES
https://legalnaija.com/enforcing-prenuptial-agreements-in/02900951941647681314/
https://lawpadi.com/are-pre-nuptial-agreements-valid-under-nigerian-law/
https://www.mondaq.com/nigeria/divorce/1285130/all-you-need-to-know-before-getting-a-prenuptial-agreement#:~:text=There%20is%20no%20reported%20Nigerian,assets%20(wealth)%20and%20liabilities.
Written by Lkite Adewaleola, Staff Writer
Edited by Lkite Adedeji Adebusuyi Ralph, Associate Editor
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