There is a legal necessity for a prenup in Nigeria. This is because, unlike many jurisdictions where state/national laws do a fine job of defining clear property rights in marriage and in the event of a divorce, the Nigerian legal framework is vague with wide discretion, the exercise of which has been influenced by patriarchal norms and an unconscious bias against women.
The courts have the power to allocate financial resources or settle property at the instance and for the benefit of the parties and the children of the marriage under Section 72 of the Matrimonial Causes Act[8] (MCA). There is however no provision under Nigerian law defining the premise and boundary of the exercise of the court’s power[9]. All the courts are required to do under section 72 MCA is to consider what is just and equitable in the circumstances of each case[10].
In applying this wide discretion, the courts have formulated, as the primary consideration, the contribution of the parties to the property[11]. In a situation where one of the parties is found not to have made any contribution, he/she will not get anything no matter the age of the marriage. Though the contribution envisaged have been stated to include moral support to the business that generated the income[12], this judicial creation defeats section 72 (1) which contemplates that the property due for settlement may belong to one of the parties and is most unfair. The idea approach which represents the intention of the legislature from a review of the law is that, once the property was acquired or paid for during the subsistence of the marriage, the parties are entitled to interest in the property and what is left for the court to do is to determine the extent or ratio of that interest. In exercising that discretion, the court may then consider factors such as contribution, the duration of the marriage, ages of children of the marriage and who has custody, etc[13].
It is hoped that one day, the court will have course to review its position on its fixation on contribution as the basis for determining interest in properties acquired during a marriage in the direction of my postulation above, however, the reality today is that the factor remains the default setting in the judicial system. The court would not grant any interest unless contribution is established. The attitude of the court has done injustice in many cases against the spirit of section 72 of the MCA. This has resulted in a situation where parties who have properties abroad prefer to petition for the division of assets in other countries or apply for ancillary reliefs after proceedings in Nigeria where the legal framework is more favourable[14].
A prenup will address the lack of clarity in the Nigerian law on settlement, of property in the event of a separation or divorce. A prenup may also be employed to subject issues of property settlement to the laws of countries (where the properties are situated) with a more favourable legal framework.
[8] Cap M7 LFN 2004[
9] There is a justifiable argument in some quarters that unguarded discretion by a court amounts to a breach of the fundamental premise of the Rule of Law. This is because a major element of the rule of law is that the law must be precise and clear leaving no room for subjective considerations.
[10] See generally Practical Law overview of Family Law in Nigeria by Efe Etomi & Elvis Asia. Available online at https://uk.practicallaw.thomsonreuters.com/6-613 4665?__lrTS=20180110042641003&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
[11] MR. ALEXANDER IBEABUCHI v. MRS. NNEKA IBEABUCHI (2016) LPELR-41268(CA), MRS. GETRUDE N. MGBEAHURUIKE v. MR. ROLAND C. MGBEAHURUIKE (2017) LPELR-42434(CA), Rimmer Vs Rimmer (1952) 2 All ER 863, Coker Vs Coker (1964) LLR 188, Amadi Vs Nwosu (1992) 6 SCNJ 59, Egunjobi Vs Egunjobi (1974) 4 ECSLR 552, Aderounmu Vs Aderounmu (2003) 2 NWLR (Pt 803) 1, Mueller Vs Mueller (2006) 6 NWLR (Pt.977) 627, Oghoyone Vs Oghoyone (2010) LPELR-CA/L/26/2003
[12] It must be noted that the courts have in some cases decided commendably that contribution may or may not be towards the acquisition of the property in issue but general contribution to joint living as husband and wife. See KAFI v. KAFI 1986) 3 NWLR (pt.27) 175 and Akinbuwa v. Akinbuwa (1998) 7 NWLR pt.559 p. 661
[13] This is consistent with the practice in the United Kingdom where our matrimonial laws originated from. In the United States, there is a presumption of 50/50 split and these factors may swing the ratio upwards or downwards depending on the circumstances.
[14] See Agbaje v Akinnoye-Agbaje [2010] UKSC 13
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