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Prenuptial and post-nuptial agreements are increasingly gaining relevance within the Nigerian legal system. While they were once viewed as uncommon or even controversial, modern marital realities—such as entrepreneurship, blended families, and cross-border assets—have made these agreements an important tool for clarity, fairness, and asset protection.
This article provides practical insight into prenuptial and post-nuptial agreements under Nigerian law, their benefits, enforceability, and common misconceptions surrounding them.
What Is a Prenuptial Agreement?
A prenuptial agreement (commonly referred to as a prenup) is a contract entered into by a couple before marriage. It outlines how financial matters will be handled during the marriage and in the event of separation, divorce, or death.
A typical prenuptial agreement may address:
- Ownership of assets acquired before and during the marriage
- Treatment of income and liabilities during the marriage
- Division of property upon separation, divorce, or death
- Responsibility for debts
- Spousal support or maintenance
- Rights to retirement plans and investments
- Estate and inheritance arrangements
By clearly defining expectations from the outset, a prenup helps reduce uncertainty and potential conflict if the marriage later breaks down.
What Is a Post-Nuptial Agreement?
A post-nuptial agreement serves a similar purpose to a prenuptial agreement but is executed after the marriage has taken place. It addresses issues such as property ownership, financial responsibilities, and asset division upon divorce or death.
It is important to note that a prenuptial agreement cannot be entered into after marriage. However, couples who are already married may validly execute a post-nuptial agreement.
Enforceability of Prenuptial and Post-Nuptial Agreements in Nigeria
Although historically uncommon, prenuptial and post-nuptial agreements are not illegal under Nigerian law.
Section 72(2) of the Matrimonial Causes Act permits parties to enter into such agreements, and Nigerian courts may consider them during property settlement proceedings. However, the courts retain discretion to determine whether enforcing the agreement is just and equitable in the circumstances.
For validity, these agreements must comply with general principles of contract law, including:
- Intention to create legal relations
- Offer and acceptance
- Consideration
- Absence of duress, fraud, misrepresentation, or undue influence
While there are limited reported Nigerian judicial decisions on prenuptial agreements, courts have shown a willingness to recognise and enforce agreements that were entered into voluntarily, fairly, and with full disclosure by both parties.
Matters a Prenuptial or Post-Nuptial Agreement Cannot Override
Certain issues remain within the exclusive discretion of the court, regardless of any marital agreement.
1. Child Custody and Access
Under the Matrimonial Causes Act, the best interest of the child is paramount. The court may:
- Award custody to either parent
- Deny custody to both parents where necessary
- Disregard any provision in a prenup or post-nup that conflicts with the child’s welfare
2. Child Support and Maintenance
Courts retain the power to make appropriate maintenance orders after considering factors such as:
- The means and earning capacity of the parties
- The conduct of the parties
- The needs of the child
Why Consider a Prenuptial or Post-Nuptial Agreement?
Modern marital dynamics have evolved significantly. Rising divorce rates, blended families, entrepreneurship, and international asset ownership all highlight the need for financial clarity.
A prenuptial or post-nuptial agreement can:
- Protect individually owned or inherited assets
- Clarify financial responsibilities within the marriage
- Define business or professional interests
- Protect children from earlier relationships
- Minimise litigation and emotional stress
- Preserve privacy and confidentiality
- Prevent unfair or uncertain outcomes in property settlements
Given the wide discretion Nigerian law grants judges in distributing matrimonial property, these agreements help provide certainty and predictability.
What May Be Included in a Prenuptial Agreement?
Typical provisions in a prenuptial agreement include:
- Division of property and investments
- Business ownership interests
- Inheritance and estate planning arrangements
- Responsibility for debts and liabilities
- Spousal maintenance
- Definitions of “separate” and “marital” property
- Financial decision-making frameworks during the marriage
Full and honest disclosure of assets by both parties is essential, as concealment may render the agreement invalid.
Common Concerns and Misconceptions
Prenuptial agreements are often viewed by many Nigerians as:
- Unromantic
- Predictive of divorce
- Contrary to religious beliefs
In reality, a prenup does not encourage separation. It functions much like insurance—you hope never to rely on it, but if unexpected events occur, it protects both parties.
Such agreements are particularly beneficial for:
- Entrepreneurs and professionals with substantial assets
- Individuals entering second or subsequent marriages
- Persons with children from previous relationships
- Spouses with significant disparities in earning capacity
That said, prenuptial agreements can benefit any couple, regardless of wealth.
Benefits of Prenuptial Agreements
Prenuptial agreements help to:
- Reduce emotional and financial uncertainty
- Protect personal and business assets
- Define financial responsibilities during marriage
- Support effective estate planning
- Reduce cost, publicity, and hostility during divorce proceedings
- Provide clear property settlement mechanisms
- Avoid prolonged and costly litigation
Conclusion
Prenuptial and post-nuptial agreements are valid and increasingly relevant within the Nigerian legal framework. They do not undermine love, trust, or faith in marriage—rather, they promote transparency, security, and fairness.
Oluwadamilola Sodipo & Co. provides legal support in:
- Drafting prenuptial agreements
- Drafting post-nuptial agreements
- Reviewing existing marital agreements
- Advising on asset protection and estate planning
- Divorce and matrimonial proceedings
If you require guidance tailored to your circumstances, our family law team will be pleased to assist.