Love With Sense: Making the Case for Nuptial Agreements in Nigeria

INTRODUCTION

In Nigeria, love and marriage are often viewed from cultural, religious and deep emotional bonds perspectives. A lot of money is spent on expensive traditional marriages, followed by white weddings before couples start their marital journeys most times, whilst the couples hope for joy and a forever union.

Does a marriage always last forever?

What happens when ‘forever’ is short lived in a marriage?

The recent Supreme Court decision in England in the case of Clive Standish and his wife, Anna Standish concerning the splitting of assets after their marriage came to an end is the justification for this article, “The Supreme Court dismissed the appeal two days ago of Mrs. Standish who argued that the transfer of almost $80m from her husband for the purpose of future tax planning was a shared asset which was subject to the ‘Sharing Principle’ in divorce proceedings.

BACKGROUND

Mr. and Mrs. Standish were married in 2005. Before this time, Mr. Standish had substantial wealth through his personal effort in banking and investment business that he retired from in 2007. It was confirmed by the High Court that there was no material increase in his wealth since his retirement.

Mrs. Standish filed for divorce with the sum of $77 million in her accounts, an amount the husband was adviced by financial advisors to place in his wife because she has a non-domicile state, which he did. The belief was that the step would exempt the money from being taxed. As at the time she filed for divorce, she was yet to place the money into a trust account as expected by her husband.

In the High Court and concerning the sharing of the assets, Mrs. Standish claimed that the marriage was a partnership of equals, and therefore the amount with her should be split 50:50. She further asserted that upon transfer, the asset had become hers, a claim the husband disputed. He claimed it was not his intention to share the 2017 assets; neither should the sharing be done equally if the court found the assets to have been matrimonialised as they resulted from his pre-marital endeavours.

Justice More rejected the claim of the wife’s separate property claim, but found that since the assets were transferred to the wife, they had become matrimonialised; wife was given 34% of the assets, while the husband was given 66%. Both parties appealed the decision.

The Court of Appeal agreed that there should be no equal sharing of the monies and rejected the wife’s separate property claim. The court also held the division at the High Court was unjust.

At the Supreme Court, Lord Burrows and Lord Stephens on 3rd day of July, 2025 dismissed Mrs. Standish claims and restated the decision of the Court of Appeal. The court held there are five principles relevant to an application of sharing principle. Most importantly, the court drew a clear line between a non matrimonial property and matrimonial property. One of the key elements of whether matrimonialisation has taken place is how the parties have been treating the asset and whether over, time they have treated it as a shared asset.

In our society, little or no attention is paid to prenuptial and post nuptial agreements. As a matter of fact, they are viewed with sceptism, dismissed as being unromantic. Unknowingly however, these agreements are tools that protect parties of a marriage, especially the females after a marriage has broken down.

This article makes a case for the need to embrace “love with sense” by exploring and bringing to the fore the importance of prenuptial and post nuptial agreements; they bring protection, peace of mind, as well as avert financial ruin in modern Nigeria marriages.

WHAT IS A PRENUPTIAL AGREEMENT?

It is a legal contract that is entered into by a couple before a marriage (It is commonly called a Pre nup).

A typical prenuptial contract sets out how assets, debts and responsibilities of a marriage will be handled during a marriage and in the event of a separation, divorce or death. It will include how marital properties will be shared, spousal support and responsibilities of each party.

In summary, a prenuptial contract is a marital insurance.

WHAT IS A POSTNUPTIAL AGREEMENT?

A post nuptial agreement is a contract made between spouses during the subsistence of their marriage, to spell out the division of assets, debts and other financial matters in the event of a divorce, or death as defined by the parties.

For many reasons, a couple may agree to a postnuptial agreement due to a significant life event, such as child’s birth, a sudden inheritance or windfall. One of the spouses may just want to protect and isolate personal property, especially in wealthy or high profile marriage, to avoid misunderstandings and assist couples navigate financial decisions 1.

WHY DO NIGERIANS NOT CONSIDER NUPTIAL AGREEMENTS DESPITE ITS PROVISION IN THE MCA?

Average Nigerian considers prenuptial agreements as a show of mistrust; some perceive them to be a foreign culture which is alien and incompatible with ours. Some even get angry at mere mention or introduction of such agreements, and will ignorantly say “It is unnecessary if true love exists”. Family members on the other hand will quickly conclude that discussing a prenuptial agreement prior to a marriage is an indicator that the person that raised it is thinking of a divorce before the marriage holds!

Religious leaders who believe marital unions are permanent won’t support a prenuptial contract. To them, a marriage is permanent, no matter its toxicity; there is therefore no need to protect yourself in the event that it may be dissolved some day.

The reality on ground is a different kettle of fish. Marriages once celebrated with pomp and pageantry do sometimes fail and when they do, particularly with high net worth families, joint businesses, joint properties, without a prenuptial agreement in place, prolonged litigation, bitter disputes, emotional trauma, which is remincent of adversarial dissolution of marriages will follow.

In Nigeria and elsewhere when a marriage breaks and there are assets to be shared, it is usually very messy.

HOW NIGERIAN LAW TREATS PRENUPTIAL AGREEMENTS

In Western Countries, prenuptial, or post nuptial agreements are widely accepted and enforced by the courts, same can however not be said about Nigeria. The Matrimonial Causes Act2 says

“The Court may in proceedings under this Act, 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 settlement on the parties to the marriage of either of them”.

A critical look at above section suggests that prenuptial or postnuptial agreements have legal value in Nigeria, and are more likely to be treated as private contracts between parties, and bind the parties in the event of a divorce proceeding. This will be so if the agreement was entered freely, it is not lopsided, nor against public policy. Nigerian courts will uphold nuptial contracts that are legal and untainted.

A nuptial or post nuptial agreements between parties in Nigeria have to ensure justice, equity and fairness. It will be widely accepted where both parties have separate legal representation; and the assets of parties are fully disclosed prior to the conclusion of the contract.

RECOMMENDATIONS

1.) LEGAL REFORM: It is highly recommended that the Matrimonial Causes Act should expressly provide directions, as well as amend the Act to include directives that will guide the use of nuptial agreements. If this is done, it will encourage lovers to be more proactive when planning a marriage.

2.) EDUCATION AND ENLIGHTMENT:

Legal Practitioners, marriage counselors should demystify everything about nuptial agreements. They should see these agreements as ways of protecting the spouses’ interest instead of seeing it as a plan to divorce even when the marriage is healthy.

3.) PROFESSIONAL LEGAL ADVICE BEFORE MARRIAGE:

Couples to be with business interests, inherited assets, self acquired assets are adviced to consult lawyers that will assist in drafting prenuptial and post nuptial agreements acceptable to both parties.

CONCLUSION

Indeed marriage when built on love, trust and commitment is beautiful. Things are no longer as they used to be, as the world has become more sophisticated and complicated. Since not all unions last forever, nuptial agreements will provide peace of mind, clarity and fairness, as well as allow couples to plan their future beyond the wedding day.

BY ‘MUNA ESEGINE, ESQ, Legal Practitioner & Notary Public
Muna19Dec@gmail.com

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1 Blasser Law https://www.blasserlaw.com.Assessed 3/7/2025

2 Section 72 (2) 1970