ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023.
215
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its
Enforceability in Nigeria
Oluwaseye Oluwayomi Ikubanni
Alade Adeniyi Oyebade
Tobi Ololu
Idris Baba Mohammed
Auheed Adam
Musa Hussaini
Yusuf Hussaini
Abstract
Pre-nuptial agreement is adjudged one of the ways of resolving the increasing marital disputes
and issues that may arise when a marriage contract breaks down. The concept of a pre-nuptial
agreement is largely unknown under the family law system of many African countries, including
Nigeria. This has been connected to the social, religious, and cultural beliefs or notions of African
societies on marriage and its related issues. In Nigeria, the rise or rampancy of divorce cases has
been linked to the absence of a prior legal arrangement between parties on how marriage affairs
would be regulated. Given this, this study examines the recognition and enforceability of
prenuptial agreements under Nigerian family law. The paper adopts a qualitative research
methodology using a doctrinal method of legal research. This paper found that there is no definite
legal framework in Nigeria for a pre-nuptial agreement. Though there is a shadow of the concept
in the Matrimonial Cause Act, there is lack of clarity on its recognition and enforceability in
Nigeria. The paper therefore, concludes that there is a need for a definite legal framework for
prenuptial agreements in Nigeria to reduce the incidents of post-marital crisis in the area of
property settlements, amongst others.
Keywords: Pre-Nuptial Agreement, Post-Nuptial, Divorce, Property Settlement, Marriage
Oluwaseye Oluwayomi Ikubanni (Corresponding Author) Lecturer, Department of Jurisprudence and Public Law,
College of Law, Joseph Ayo Babalola University, Ikeji-Arakeji, Osun State, Nigeria, E-mail:
ooikuban[email protected].ng; +234(0)8107295253
Alade Adeniyi Oyebade Lecturer, Department of Jurisprudence and Public Law, College of Law, Joseph Ayo
Babalola University, Ikeji-Arakeji, Osun State; E-mail: aaoyebade@jabu.edu.ng; +234(0)7036324824
Tobi Ololu Lecturer, Nigerian Law School, Dr. Nebo Graham Campus, Portharcourt. Rivers State;
tobiololu@yahoo.com; +234(0)7031362532
Idris Baba Mohammed Lecturer, Nigerian Law School, (Enugu Campus), Enugu State, Phone
number:0806620949; Email: ibmohammedesq@gmail.com
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 216
Auheed Adam Lecturer, Nigerian Law School, (Yenagoa Campus), Yenagoa, Bayelsa State, Phone number:
08060373366, E-mail: tauheedadam2016@gmail.com,
Musa Hussaini
Fati Lami Abubakar Institute for Legal and Administrative Studies, PMB: 133, Minna, Niger
State, Phone: 08038412182. Email: musahussaini[email protected]om.
Yusuf Hussaini
Fati Lami Abubakar Institute for Legal and Administrative Studies, PMB: 133, Minna. Niger
State. Phone no: 08065624565. Email: yusufhussaini425@gmail.com
1. Introduction
A pre-nuptial agreement is generally a unique form of agreement usually entered into by parties
who are anticipating marrying each other while they still contemplate a future divorce
831
. The
motive of this form of agreement is to regulate the affairs of parties by conferring rights, duties,
and responsibilities on each of the parties to avoid unnecessary crises over the sharing of properties,
and alimony, among others
832
. Some married couples use prenuptial agreements to create
contractual conditions that will specify how their assets would be divided in the case of divorce
833
.
It caters to the post-divorce need of the parties to the marriage as well as third parties including
creditors
834
. Therefore, the contract might be crucial to an estate plan because they specify how
assets will be distributed in the event of a death or divorce
835
. According to Onya
The increase in the incidence of dissolution of marriage in the Nigerian society has necessitated
intending couples to consider a prenuptial agreement, especially with regards to what happens to
property, third parties such as children as well as other interest arising from the marriage. These
considerations have given rise to the development of prenuptial agreement.
836
.
Though discourse on pre-nuptials is fast taking center stage in the literature on family law and
social media
837
, it is fraught with controversy as to its appropriateness and enforceability in many
831
Belinda Fehlberg and Bruce Smyth “Binding Pre-Nuptial Agreements in Australia: The First Year” International
Journal of Law, Policy and Family, (2002) 16(1), 127-140
832
J.T. Oldham “With all my Worldly Goods I Three Endow, or Maybe not: A Reevaluation of the Uniform Premarital
Agreement Act after three Decades” Duke Journal of Gender Law& Policy, (2011)Vol. 19, 83
833
Dalling Samuel, “Regulating Pre-nuptial Agreements: Balancing Autonomy and Protection” a Thesis Submitted to
Durham University, 2013, 4; Judith T. Younger, “Perspectives on Antenuptial Agreements: An Update” Journal of
the American Academy of Matrimonial Lawyers (1992) 8(1) 8
834
Margaret Ryznar and Anna Stqpieh-Sporek, “To Have and to Hold, for Richer or Richer: Premarital Agreements
in the Comparative Context” Chapman Law Review (2009) 13(27) 27-62
835
Bart A. Basi & Ed Bodnam, “Premarital Agreements: Retirement Plan Rules Supersede Premarital Contract”, Tax'n
For Law(1996) 24, 226
836
Obinna Onya, “Validity of Prenuptial Agreement in Nigeria and the Public Policy Test” International Journal of
Comparative Law and Legal Philosophy (2021) 3(1) 175
837
Gail Frommer Brod, “Premarital Agreements and Gender Justice” Yale Journal of Law & Feminism (1994)6, 229
8
S. Thompson, “Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and
Practice”(Bloomsbury Publishing, 2015) 45-62
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 217
jurisdictions
8
. Legal scholars have opined that a pre-nuptial agreement is not only “unromantic”
but also “cold-blooded”
838
.They argue that the pre-nuptial agreement itself is contrary to public
policy
10
. They maintain that the government should promote marriage and that pre-nuptial
agreements promote divorce because they anticipate divorce. In the decided case of Hyman v
Hyman
11
, pre-nuptial agreements were deemed invalid under old English law because they were
thought to be against public policy since they undermined the idea of marriage as a permanent
partnership. The notion that public policy should forbid the enforcement of pre-nuptial agreements
which frequently included provisions for the possibility of divorce was put forth
839
.
On the contrary, some argued that pre-nuptial agreements promote marriage because they give
married couples the ability to fashion their relationship
840
.Under the English jurisprudence, the
current position is as summarised in the landmark decision of Radmacher v Granatino
841
where
the Supreme Court acknowledged that courts should, in the exercise of their discretion under the
Matrimonial Causes Act 1973, give weight to such agreements depending on the circumstances
842
.
However, the Court issued a warning, instructing courts to evaluate the substance and procedural
fairness of the terms, taking into consideration those that passed the requirements and excluding
others. courts were not to blindly follow the terms imposed by the divorced couple.
Prenuptial agreements are said to be helpful in situations where a couple is thinking about getting
married, even though it would not be the first marriage for either side
843
. Divorce is a difficult
emotional process. A well-written prenuptial agreement could be utilised in this circumstance to
help "mature couples...regulate future enjoyment of their assets
844
". A pre-nuptial agreement is one
of the marriage-related concepts, which is fast gaining popularity within international family
law
845
. It is a subject that is gaining prominence in national imagination
846
. The concept is not a
838
Janice Montague, ‘Family Law: Ancillary Relief – Pre- and –Post-Nuptial Agreements’ Cov LJ (2008) 13(2) 36,
38
10
J. L. Dolgin, “Solomon's Dilemma: Exploring Parental Rights: The "Intent" of Reproduction: Reproductive
Technologies: The Parent-Child Bond” Connecticut Law Review (1994) 26, 1261, 1268; Peter Sevareid, “Increase
In Value of Separate Property In Pennsylvania: A Change in What Women Want”, Temple Law Review (1995) 68,
557, 596; W. F. Fraatz, “Comment, Enforcing Antenuptial Contracts In Minnesota: A Practice in Search of a Policy
Basis in the Wake of McKee-Johnson v Johnson, Minnesota Law Review (1992) 77, 441, 444
11
(1929) AC 601
839
Ibid cited in Obinna Onya (n 6) 175
840
C. Biemiller, “The Uncertain Enforceability of Prenuptial Agreements: Why the Extreme Approach in Pennsylvania
is the Right Approach for Review” Drexel Law Review, (2013) 6, p. 133
841
[2010] UKSC 42, [2010] 2 FLR 1900
842
Kamilia K. Anuar, “Procedural Fairness in Prenuptial Agreements: Inconsistent and Inadequate”Oxford
University Undergraduate Law Journal (2017)6, 45
843
Law Commission, Marital Property Agreements – A Consultation Paper (Law Com No 198, 2011) 1-4
844
This position was decided in the English case of Radmacher (formerly Granatino) v Granatino [2009] EWCA
Civ 649.
845
F. Jens-Uwe, ‘So Hedge, therefore, who Join Forever: Understanding the International of No-fault Divorce and
Premarital Contracts’ International Journal of Law, Policy and the Family, (2009) 23(3), 235-276
846
Emy Sigler, “Case Comment, Elgar v. Probate Appeal: The Probate Court's Implied Pow- ers to Construe and to
Enforce Pre-Nuptial Agreements”, Connecticut Probate Law Journal (1994) Vol. 9, 145
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 218
new idea, either legally or culturally
847
. In any marital relationship, it has always been the concern
and desire of most women folks that, if there is a divorce or if any of the spouses died that they
would not end up homeless
848
. This position, among many others, engineered the wide acceptance
of prenuptial agreements within jurisdictions where the concept has become legalized.
It has been erroneously argued that pre-nuptial agreement for all intent and purpose is an exclusive
reserve of the wealthy in society
849
. While it is true that a prenuptial agreement can be utilised to
protect the wealth or property of a wealthy party, especially from being shared equally with the
other spouse
850
, it is also available as an option for any social class of person whenever there is the
concern for the determination of how property may be shared in the future in case of divorce. The
non-existence of a fixed rule on the settlement of marital properties has been of serious concern to
scholars of international family law
851
. They, therefore, believe that pre-nuptial agreement helps
to take care of the challenges that the non-existence of fixed rules on marital property settlement
may occasion.
There is no gainsaying that the conventional notion of marriage has undergone significant change
in many nations around the world over the past few decades
852
. The term pre-nuptial agreement
should not be confused with the marriage of old days settlement, which was concerned not mainly
with the effects of divorce but with the establishment and maintenance of families
853
. Prenuptial
comes into play in divorces, of course, but that is not all. Apart from establishing how assets are
divided when a married couple splits up, pre-nuptial agreements also can determine what a party
can get when the marriage ends
854
.Some proponents of pre-nuptial agreements argue that it protects
the interests of both parties to the agreement and prevents an eventual court battle when the
relationship ends. However, some critics say there is nastiness that can arise in negotiating a
847
N.R. Schembri, “Prenuptial Agreements and the Importance of Independent Counsel” Journal of Civil Rights and
Economic Development (2003) 17(2)313-346
848
Amrita Ghosh and Pratyusha Kar “Prenuptial Agreements in India: An Analysis of Law and Society” NUJS L. Rev.
(2019) 12, 1. Available at http://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf
[accessed 8th August 2023]
849
Helen Newman, “The Increasing Importance of Nuptial Agreements in Light of Recent Cases and Statutory
Developments’ Journal of Huddersfield Student Research (2017) 3(1) 131
850
Joanna Miles, ‘Marriage and Divorce in the Supreme Court and the Law Commission: for Love or Money’ Modern
Law Review (2011)74(3) 430, 442.
851
Ncube Welshman, “Re-allocation of Marital Property at the Dissolution of Marriage in Zimbabwe.” Journal of
African Law (1990)34, p.1
852
Sylvia Ifemeje “The Legal Definition of Marriage and the Changing Concept of Marriage – A Global Overview”
Unizk Law Journal, (2007), p229
853
C. Amberlynn,“The Uniform Premarital Agreement Act and Its Variations Throughout theStates”Journal of the
American Academy of Matrimonial Lawyers (2010) Vol. 23, p. 355.
854
S.M. Israel, ‘Is Prenups a must for couples’<http://www.wsj.com/articles/is-a-prenuptial-agreement-a-must-
formost-couples-1425271056> Accessed 8
th
August 2023
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 219
prenuptial and it can cripple a marriage before it commences, and that there are laws that can
balance the welfare of both spouses when they split
855
, rather than using a pre-nuptial agreement.
In some states such as Canada, and the United States, courts recognize that marriage is a business
or contractual relationship and that couples should be free to remain autonomous within marriage.
Hence, the adoption of the Uniform Premarital Agreement Act (UPAA) of 1983 a set of laws on
premarital agreements. The UPAA provides a list of property-related items on which couples may
agree when entering the prenuptial agreement. It also includes a stipulation allowing couples to be
in agreement on any matter, including their rights and responsibilities. However, in Africa except
for South Africa, the pre-nuptial agreement has been opposed as a concept that equates a man with
a woman in terms of rights which is contrary to the cultural belief of African societies
856
. The
African culture has been described as “illiberal towards women’s rights”
857
. The insistence of an
African woman for the draft of a prenuptial agreement is an invitation to be labelled “gold-digger”
or a “fortune hunter”
858
.
It is not surprising that while some countries may have embraced pre-nuptial agreement as a
welcomed development
859
, in Nigeria, the idea of a pre-nuptial agreement is uncertain under family
law. Some folks have attributed the concept to a Western idea. Some postulate that the idea is
contrary to Public Policy. It is against this background that this article attempts to examine the
enforceability of pre-nuptial agreements in Nigeria in resolving a post-marriage crisis on finance,
property sharing, and alimony, among others in this era of an increasing rate of divorce.
2. The Concept of Pre-Nuptial Agreement
A Pre-nuptial agreement also known as a premarital agreement or antenuptial agreement, is a
contract made in expectation of marriage that specifies the rights and duties of the parties
860
. Such
an agreement usually includes terms for property distribution in the event the marriage terminates.
The concept is also defined as an agreement by which a man and a woman or same-sex partners,
who are about to marry or register as a civil partnership, seek to regulate their affairs during their
marriage or partnership and in the event of a relationship break down
861
.The agreement is an effort
by parties to define for themselves their rights, obligations, and responsibilities that flow from the
855
B.Y. Cheryl, ‘Prenuptial Agreement:YES: It May Be Fun, but it Can Save a Lot of Heartache
heartaches<http://www.wsj.com/articles/is-a-prenuptial-agreement-a-must-for-most-couples-1425271056>
Accessed 1
st
November 2022
856
S.C. Ifemeje, “A case for Global Enforceable Prenuptial Agreements” Nnamdi Azikiwe Journal of Internationa Law
and Jurisprudence (2016) 1, 153
857
A.G. Karibi – Whyte, “Succession Rights of Women in Nigeria Law” (Law and Family, Enugu 1994) p23 cited in
S.C. Ifemeje (n 29) 153
858
Hyman v Hyman (1929) A.C. 601 cited in S.C. Ifemeje (n 29) 153
859
For example, Australia, America Canada, New Zealand, South Africa
860
Elizabeth R. Carter, “Rethinking Premarital Agreements: A Collaborative Approach” New Mexico Law Review.,
(2016) 46, p. 354
861
Family Agreement: seeking Certainty to Reduce Disputes. The Recognition and Enforcement of Pre-nuptial
Agreements in England and Wales, P.5.Available at http://www.resolution.org.uk/site_content_files_/
files/family_agreements.pdf. Accessed 23 July 2016at 8:50 pm
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 220
marital relationship and that otherwise would be regulated and determined by state law upon death,
annulment, separation, or divorce
862
.
The concept, which is commonly abbreviated to Prenup or Prenupt, is a contract entered into before
the focal contract by the people intending to marry or enter into an agreement with each other. The
substance of a pre-nuptial agreement can vary widely but commonly includes provisions for the
division of property and spousal support in a divorce or break up of a marriage. They may also
include conditions for the forfeiture of property as a consequence of annulment of marriage on the
reason of adultery; further terms of guardianship may be added as well. A pre-nuptial agreement
is an unusual kind of contract
863
. It exists as a result of the contemplation of divorce by marrying
parties; therefore, the subject matter of the agreement is unique
864
.
A pre-nuptial agreement can cover various issues
865
, however, the most common, include assets
and financial aid rights during and after marriage, personal rights and duties of the couple during
marriage, and the education and nurturing of children to be born to the couple
866
. Typically, a
prenuptial contract is used by one spouse or mutually by spouses to maintain personal assets and
income detach during the marriage or to shield certain assets before one spouse embarks on a
dangerous investment or new livelihood
867
.When people sign pre-nuptial agreements, they enter a
contract that outlines the financial assets, possessions, and responsibilities each party has if their
marriage ends in divorce. Pre-nuptial agreements are not only for the wealthy. Individuals with
prior marriage or children may want a pre-nuptial agreement to outline that property goes to their
children instead of the new spouse
868
. For instance, they may want to keep the family property,
such as heirlooms, if the marriage fails. Also, people may want to protect themselves against their
future spouse’s debt or avoid arguments during divorce proceedings
869
.
The idea of a pre-nuptial agreement is not a new one either culturally or legally. There is a Jewish
marriage contract known as “Ketubah” that dates back to 2000 years
870
. In England around the
862
Ibid
863
Allison Martson, “Planning for Love: The Politics of Prenuptial Agreements” Stanford Law Review (1997) 49(4)
887-916
864
Ibid
865
Catherine Fairbairn, “Pre-nuptial Agreements” The House of Commons Library, Briefing Paper Number
03752(2017) 3-17https://researchbriefings.files.parliament.uk/documents/SN03752/SN03752.pdf [accessed 8th of
August 2023
866
Nicholas Marfori, “For Richer, Not Poorer: Premarital Waivers of Spousal Support in California” Loyola of Los
Angeles Law Review (2016) 49, 843
867
Mary C. Doherty, “Romantic Premarital Agreements: Solving the Planning Issues without the D Word” Journal
of the American Academy of Matrimonial Lawyers (2016) 29, p. 35
868
Ibid
869
Nigel Lowe, “Prenuptial agreements: the English Position” InDret (2008) Vol. 1, 1-12
870
S.C. Ifemeje, “A case for Global Enforceable Prenuptial Agreements” Nnamdi Azikiwe Journal of Internationa Law
and Jurisprudence (2016) 1, 152.
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 221
sixteen century, prospective spouses used them to adjust the legal rules that would or else govern
their assets rights during and after marriage
871
.By the mid-seventeenth century, premarital contract
were so vital that Parliament required them to be documented. By 1700, they were so commonplace
as to be the subject of jokes in the English popular theater
872
.The practice dates back to the
primordial Egyptians, and prenuptial agreements have existed for many centuries in the
AngloAmerican custom
873
. In earlier times, the parents of either spouse negotiate the contract on
the new couple's behalf
874
. However, in the United States of America, these contracts or
agreements are still useful; the rich and elite often make use of the prenuptial agreement
48
.
3. Other Categories of Marital-Related Agreements
This paper is primarily focused on pre-nuptial agreement. However, there is the yawning need to
briefly examine other variants of pre-nuptial agreement which perhaps has almost the same
implication as a pre-nuptial agreement. Under this heading, this article will discuss three such other
forms of agreement that are closely related to a pre-nuptial agreement. These forms of agreement
are post-nuptial agreement, Mid-nuptial agreement, and Cohabitation agreement.
3.1 Post-Nuptial Agreement
Post-nuptial agreement (also known as a post-marital agreement) is an agreement entered into by
the parties after the marriage that sets forth the rights and obligations of each party in the event of
divorce
875
. A post-nuptial agreement can be used when no divorce is contemplated or when divorce
is not imminent. A separation agreement is entered when divorce is imminent.
Postnuptial agreements are created and signed by spouses after they marry. It is similar to
prenuptial agreements because it outlines information such as responsibilities or assets
50
. However,
post-nuptial agreements are typically used to resolve some type of problem in the marriage and
can be in lieu of alimony. The contact may seek to regulate spouses’ behavior, such as spending
too much money, household responsibilities, or adultery. Also, the contract can be created after
there some change in finances after the spouses were married, which can include but are not limited
871
Premarital Agreement “International Encyclopedia of Marriage and Family (2003) Available at
http://www.enclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/premarital-agreements
Accessed 16 August, 2017
872
Ibid
873
Gary Debele and Susan Rhode, “Prenuptial Agreements in the United
States”Available at https://www.iafl.com/media/1169/prenuptial_agreements_in_the_us.pdf Accessed 11
th
August 2023
874
Colleen Sullivan, “History of Prenuptial Agreements: Prenups Are Not a New Idea.
http://marriage.about.com/od/agreements/qt/prenuphistory.htm Accessed8th August 2023
48
J.T. Oldham, “Would
Enactment of the Uniform Premarital and Marital Agreements Act in All Fifty States Change US Law Regarding
Premarital Agreements?” Family Law Quarterly, (2012) 46(3), 367-384
875
B. Clark B, “Should greater prominence be given to pre-nuptial contracts in the law of ancillaryrelief?”Child and
Family Law Quarterly(2004) 399
50
Ibid
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 222
to buying a business, inheriting money, or changing a career. Postnuptial agreements may modify
a pre-nuptial agreement
876
.
3.2: Mid-Nuptial Agreement
As the name suggests, a Mid-nuptial agreement is an agreement that is entered into between
spouses during the marriage
52
. This could be an initial agreement or a prior agreement variation,
such as a pre-nuptial agreement
877
. There may be numerous reasons for couples to draft a
Midnuptial contract or agreement; usually, it is used when a major change in financial situation
has occurred since the marriage of the couples. Even if the spouses have no plans for divorce, many
find security in knowing that their financial interest is protected, whether the marriage continues
or not.
3.3: Cohabitation Agreement
A cohabitation agreement exists between two unmarried individuals who live or intend to live
together, defining their intentions, rights, and obligations concerning each other living together
and upon the termination of their relationship
878
.The contract can include which partner receives
any shared investment property or pets
879
.
3.4: Family Agreement
This is a confidential obligation between older people and their relatives and friends which is
planned to accommodate the desires of the older person as they age, and are consistent with the
wish, needs, resources, and aspirations of the other persons who assume the place of the
counterparty (often the carers)
56
. Family contract or agreements can also be described as
independent care contract or agreements, personal services contracts, or lifetime care contracts
880
4. Legal Requirements of a Pre-nuptial Agreement
A pre-nuptial agreement is a contract, just like any other contract in the business world. However,
unlike the general nature of other forms of contract in the business world, a pre-nuptial agreement
cannot exist between strangers; rather, it is premised on love and trust between two persons who
876
J.C. Colucci, “The P World: Ohio Should Adopt the Uniform Premarital Agreement Act to Achieve Consistency
and Uniformity in the Treatment of Prenuptial Agreement” Cleveland State Law Review, 66,p. 215
52
J.A. Parness,
“Parentage Prenups and Midnups” Georgia State University Law Review (2107) 31, 343
877
Ibid
878
B.A. Atwood and H.B. Brian, “A New Uniform Law for Premarital and Marital Agreements” Family Law
Quarterly, (2012) 46(3), 313-344
879
S. Kennedy, “Ignorance is not Bliss: Why States Should Adopt California’s Independent Counsel Requirement
for the Enforceability of Prenuptial Agreements” Family Court Review, (2014) 52(4), 709-724
56
John Wade,
“Marriage and Cohabitation Contracts” The National Legal Eagle (2011) 17(2) 3-5
880
Ibid
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 223
intend to get married
881
.A pre-nuptial agreement being a contractual relationship has the general
legal requirements of a valid contract. This position is in line with the decided case of Azubike vs
Govt. of Enugu State for an agreement to be enforceable at law, it must possess the essential
elements of a valid contract
882
. An agreement or a contract must include four necessary elements
to be regarded as an agreement or a contract
60
. If anyone of these essential elements is missing, the
agreement or a contract will not be legally binding or enforceable
61
.
4.1. Offer
A pre-nuptial agreement has elements of a contract because there must be an offer from either
intending marriage spouse. The proposal is to be tabled and discussed by both parties and can also
be represented by independent counsel. In pre-nuptial agreements, an offer is said to be valid
whenever a proposal is discussed and accepted by the other party to the marriage contract, and
counsel representing the couple has to look at the terms of the proposal presented to the other party.
It must be noted that unlike other forms of contract, pre-nuptial agreements cannot be made orally,
except in writing
62
. Therefore for a pre-nuptial agreement to be legally valid and enforceable in
court, it must be written. Also, worthy of note, a pre-nuptial agreement offer can only be made
between two parties, unlike other contracts where it can be made to the whole world there is a limit
in pre-nuptial agreement as to several people offer can be made too, it is strictly between two
intending or marries couples.
63
Once a party brings up the idea of a prenup, there is an offer waiting
for acceptance.
4.2. Acceptance
An acceptance is the last expression of consent to the terms or condition of an offer
64
. By receipt
of the offer, the offeree signify his intent and readiness to be bound by the offer's conditions. When
an offer is agreed on, it is transformed into a promise, and a breach of it will give rise to an action.
An acceptance, like an offer, may by word of mouth, in writing, or by conduct. For acceptance of
an agreement to be valid, it must be unqualified. It must correspond with the offer. Any deviation
or alteration of the offer while accepting the offer will be regarded as invalid. In other words, a
response to an offer is only valuable as an acceptance if it accepts all terms or conditions of the
offer without equivocation, qualification, or condition. An attempt to accept an offer with the
condition amount as a counteroffer and not acceptance.
In essence, a pre-nuptial agreement can only be enforceable if the party to the contractual
obligations accepts all terms of the offer without equivocation, qualification, and addition. Unlike
other forms of contract, pre-nuptial agreements must be accepted in writing and not by conduct or
oral, the documents passing between the couples and signed
65
.In a pre-nuptial agreement, an offer
can be made by either of the parties, and it becomes an offer when one party raises it, and the other
party consents to it. Then there will be deliberation on what it should contain. The offeror is always
881
Robert Digiacomo, ‘Quit Fighting-get a Postnuptial Agreement’<http://www.edition.cnn.com/2008/
LIVINGpersonal/04/02/postnuptial.agreement/index.html.> Accessed 2
nd
January 2020
882
(2014) (Pt. 1400) 364 at 392, the court held that a legally enforceable agreement must necessarily have the following
ingredients to wit: Offer, Acceptance, Consideration, Intention to create a legal relationship, and the capacity to
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 224
the one that has something at stake to lose in case the marriage did not work. It is one who has
enough property interest and wants to secure the same in case the marriage did not work.
contract. These five necessary ingredients must co-exist as a contract cannot in law, be formed in the absence of any
of the ingredients.
60
Shell Petroleum Development Company Ltd v Frontline Television Ltd (2011) LPELR 4952; Amana Suites Hotel
Ltd vs P.D.P (2007) 6 NWLR (Pt. 1031) 453
61
Ibid
62
Peter T. Leeson and Pierson Joshua, “Prenups” Journal of Legal Studies, (2016) 45(2), p. 367.
63
Ibid
64
Treitel, The Law of Contract (5
th
Ed.) p. 13 cited in Sagay, I.E “Nigerian Law of Contract” (Spectrum Law
Publishing, 1991) P. 13
65
Charlotte K. Goldberg, “If It Ain’t Broke, Don’t Fix It”: Premarital Agreements and Spousal Support Waivers in
California”Loyola of Los Angeles Law Review (2000) 33, p 1245.
4.3. Consideration
A pre-nuptial agreement must be supported by consideration by the either of the parties to the
agreement, a bargained-for barter of something of worth (usually the mutual promise to marry in
the case of a pre-nuptial agreement, although courts may sort for extra consideration when one
party appears to benefit everything and give up nothing)
883
.In quest of enforcing a pre-nuptial
agreement or contract, a person must prove that some consideration was furnished by him/her in
return for the other party’s assurance or promise
884
. It is a fundamental rule of law that for the
prenuptial agreement to be valid and enforceable, there must be a consideration. In pre-nuptial
agreements, consideration comes in contracting the marriage; the couple making the offer and
accepting the offer must have agreed to marry each other to make the contract valid and
enforceable.
4.4. Capacity to Contract
The parties or intending couples must possess have the capacity to contract in terms of age and
mental competence or fitness. The Married Woman’s Property Act abolished the long perennial
issues of a married woman's non-contractual capacity
885
. To the extent that they can contract with
their husband and there are liable for that, therefore, no more impediment for intending married or
marriage to enter into the valid and enforceable pre-nuptial and post-nuptial agreements.
5. How Enforceable is the Pre-Nuptial Agreement in Nigeria?
883
Brian Bix, Bargaining in Shadow of Love: The Enforcement of Premarital Agreements and How We Think About
Marriage” William and Mary Law Review (1999) 40(1) 145-207
884
Michelle Butler, “Part Two: Alimony and the Marriage Contract: California PremaritalAgreements Waiving or
Specifying Spousal Support Obligations” 20 Journal Contemporary Legal Issues(2009) 41, p. 41
885
Married Woman’s Property Act of 1848
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 225
The concept of Pre-nuptial agreement is strange in Nigeria. The idea has been primarily considered
by many as a Western construct, which conflicts with Africa’s cultural concept of marriage
886
. To
anticipate or envisage a marriage's dissolution before it begins is considered by many as a “bad
omen”
887
. Thus the idea of a pre-nuptial agreement in Nigeria can be viewed with strangeness as
an idea contrary to public policy and an accepted norm. Society views it as taboo and contrary to
public policy
888
.Furthermore, marriage was (and still mainly is) considered a sacred institution
created by God and initiated by love; any attempt to imply its contractual nature as evidenced in
the signing of prenup (as done in “foreign lands”) was considered unacceptable, and abominable.
African countries, except South Africa, have shunned or refuse to recognise pre-nuptial contracts
or consider their enforceability
889
. This adamant move could be traced to the African sociological
backdrop; African traditions have been bluntly criticized as very ‘‘illiberal towards women’s
rights’’
890
.
In Nigeria, the idea of a pre-nuptial agreement has been faulted on various grounds. These grounds
include but are not limited to the following:
1. Public policy and cultural values attributed to the nature of marriage
2. A pre-nuptial agreement is viewed as ousting the jurisdiction of the court on issues
contained therein
3. The sanctity of marriage is weakened or jeopardized where parties have already
contemplated or anticipated a divorce before entering into the marriage.
It could, therefore, be argued that cultural factors have seriously jeopardized the growth of
prenuptial agreements in Africa. For instance, any African woman who insists on drawing up a
prenuptial agreement before marriage would run the risk of being labeled “gold–digger’’or “a
fortune hunter
891
.Nigeria is a religiously and culturally inclined country. Either religious or cultural
beliefs guide an average Nigerian’s conduct. This position, in a way, has also sneaked into our
legislative standards. No law in Nigeria explicitly deals with a pre-nuptial agreement. The
Matrimonial Causes Act (MCA)
892
, which regulates marriage-related matters and recognizes the
possible existence of a pre-nuptial agreement, did not explicitly deal with the concept. The Act is
currently the only legislation that regulates the distribution of properties when a marriage breaks
886
A. Zia “Prenuptial Agreements, Sacred Marriages, and the Radmacher Judgment” Journal of Comparative Law
(2013) 8, 192
887
Elvis Asia, “Why You Should Consider a Prenuptial Agreement before Marriage” DNL Legal and Style, (2019).
Available at https://dnllegalandstyle.com/2019/practical-and-legal-reasons-for-pre-nuptial-agreement-in-
nigeriaelvis-e-asia/ [Accessed 8
th
August 2023]
888
Mathew Obaro, “Examination of Prenuptial Agreement in United States of America and United Kingdomand Its
Jurisprudential Lessons For Nigeria (LL.M Dissertation, University of Ilorin, 2017) P. 148
889
Ibid
890
A.G. Karibi-Whye, “Succession Rights of Women in Nigeria Law” (Law and Family, 1994) 23
891
S.C. Ifemeje, (n 29) 2-7
892
Cap M7 LFN 2004
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 226
down. Therefore, the enforceability of pre-nuptial agreements in Nigeria remains a myriad more
particularly because the concept has not received any judicial recognition yet.
However, Section 72 of the Matrimonial Causes Act is to the effect that:
i. The Nigeria court may, in any proceedings under this Act, by order requires the intending
couples to the marriage or to make for the assistance of all or any of the parties to, and the kids
of, the marriage, such a settlement of the assets – to which any of the intending couples are
entitled, as the court may consider fair and just in the circumstances of the case. ii. The court, in
any proceeding under the Marriage Causes Act, shall make such order as the court considers just
and unbiased concerning the claim for the assistance of all or any of the intending couples to,
and the offspring of the marriage of the whole, or some part of the assets, dealt with by ante-
nuptial or post-nuptial settlement on the parties to the marriage or either of them.
A careful perusal and digestion of Section 72 Matrimonial Causes Act suggest that the Act
recognizes the rights of parties to a marriage to enter into a pre-nuptial or post-nuptial agreement.
However, it empowers the court to make an order that it considers just and equitable in any
circumstances, notwithstanding any pre or post-nuptial agreement. The court reserves the
discretion to distribute the asset of the marriage for the benefit of all, notwithstanding the existence
of any ante or post-nuptial agreement. Furthermore, the court is not bound by the subsistence of
any ante or post-nuptial agreement in the exercise of its discretion in distributing properties. What
guides the courts is justness and equitableness.
Section 72 is like bedrock for a pre-nuptial agreement in Nigeria, but there is no single legislation
regulating what a pre-nuptial agreement is. The Section merely makes a mention of pre-nuptial
and nothing more. It envisages the fact that it might be in existence and nothing more. It is merely
speculative. Even though pre-nuptial agreements are not prevalent in this part of the world, they
may still be enforceable in courts
893
. Parties are bound by their agreement in as much as the
agreements are not vitiated by other factors. For instance, they are written law in Nigeria that
governs succession, custody of children, divorce, and dissolution of marriages.
Any agreement, no matter how well-drafted, which seeks to oust the provisions of these laws, fails
in court. Outside these, the courts are generally inclined to uphold the content of any agreement
that is devoid of duress, misrepresentation, undue influence, and or fraud
77
.
893
M. Bello, ‘Examination of the applicability and enforceability of prenuptial agreement in Nigeria andUnited
Kingdom’; Babayomi Olutumbi, “Understanding Prenuptial Agreement: The Nigerian Perspective” (August 25, 2022)
Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4200469 [accessed 11
th
August 2023]
77
J.H.
Blomberg, “Unconscionability: The Heart of the Uniform Premarital Agreement Act”Journal of Family
Law,(2001)15, p. 131.
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 227
In essence, the enforcement of a pre-nuptial agreement is mainly dependent on the court’s
discretion based on what it terms fair and equitable. The court is not bound by the existence of a
pre-nuptial agreement even if it is valid, and it conforms to all the requirements of a valid contract.
6. Conclusion
Pre-nuptial agreements, as shown above, are recognised under the Matrimonial Causes Act, but for
religious and cultural beliefs, the concept is almost viewed as a taboo such that it has become
almost a bizarre phenomenon. The practice is seen by many as a Western construct. The usefulness
of pre-nuptial agreements outweighs its perceived disadvantages, contrary to the view of many.
The factors militating against its general acceptance in Nigeria are also attributable to illiteracy
and lack of sensitization about its uses.
There is a call for Nigeria to adopt a well-designed law or learn from countries that are already
thriving in this area of family law, such as the United States of America, Netherlands, Canada, etc.
However, South Africa is the only African country where a pre-nuptial contract or agreement is
directly recognized and enforceable. A pre-nuptial contract or agreement, in all ramification,
allows the intending couples to take more obligation in arranging their affairs. Marriage is now
regarded as an equal partnership; consequently, intending parties or couples should be educated or
encouraged to arrange and draw up their marital affairs agreement to suit their particular situation.
A prenuptial contract is not a break-up or divorce plan; it can be likened to assurance or insurance.
The insurance or protection of one’s property against fire does not mean or envisage one is inviting
a fire to obliterate it, and the fire may certainly not take place, but when it does, the consequence
will be ameliorated or cautioned. People also believe that negotiating a prenuptial contract often
degenerates into disagreement even prior to the marriage. However, it suffices to say that starting
a bond between intending couples with a contract or agreement sets out the facts of what will
transpire upon the demise of any of the parties or divorce, and it can stimulate a sense of faith or
trust. As this may be, sincere communication about finance or well-being before marriage, which
a prenup symbolizes, can advance the value of relationships and provide an avenue for
communication in marriage.
There is a need for Nigeria to have a definite legal framework that regulates this area of family
law. For example, the United States of America and the United Kingdom have a settled legal
framework on pre-nuptial agreements. A settled legal framework gives clarity and direction for
pre-nuptial agreements. With the alarming explosion in the divorce rate in Nigeria, there is a need
for intending couples to resort to pre-planning and signing of pre-nuptial agreements before
entering into marriage contracts as warmly embraced by many countries of the world such as
Canada, New Zealand, among others.
7. Recommendations
In light of the discussions above and having examined the extent or recognition and enforceability
of pre-nuptial agreements in Nigeria, this paper makes the following recommendations:
Planning for Divorce before the Marriage: The Concept of Pre-Nuptial Agreement and its Enforceability in Nigeria,
Oluwaseye Oluwayomi Ikubanni, Alade Adeniyi Oyebade, Tobi Ololu, Idris Baba Mohammed, Auheed Adam, Musa
Hussaini & Yusuf Hussaini
ISSN: 2736-0342 NAU.JCPL Vol. 10(2) 2023. 228
1. There is the yawning need to sensitize Nigerians on the benefit of a pre-nuptial agreement.
It saves the court from the rigors of a post-divorce property settlement. As wrongly
believed, a pre-nuptial agreement does not encourage divorce, but rather it strengthens the
marital relationship as both parties are rest assured of what is expected in the marriage.
None of the spouses is surprised; they both live in a world of reality, not imagination.
People should be informed that pre-nuptial agreements are not only for the wealthy as
wrongly conceived.
2. There is the need for recognition of pre-nuptial agreement in Nigeria through the enactment
of a definite legal framework regulating it.
