Divorce has become a feature of our society; the bases for the unpopular nature of prenup in Nigeria no longer exist. There are many reasons why you should consider a prenuptial agreement before marriage or at least have a clear discussion on issues dealing with property and finance.
We have to admit that love is a nebulous concept and can be fleeting. The reality is that the emotional basis for entering into a marriage in the first place may wane. More importantly, the so-called love may have been influenced by other considerations. In such circumstances, a prenup may be the best way to be sure that the ‘love’ is not for the wrong reasons.
Having a prenup can protect each spouse’s separate property, support estate planning, set definition for key terms like ‘private property’, ‘marital property’ etc, clarify special agreements between parties and establish procedures and ground rules for deciding future financial matters.
Failure to consider a prenup is potentially costly and may be ultimately damaging in the event of a divorce. This is taking into consideration, the cost of litigation, the ‘bad blood’ generated during the trial, press exposure leading to career and other relationship threats or destruction, effect on children and so on. Whereas, a prenup, with the specific inclusion of ‘property settlement mechanism’ and ‘confidentiality’ terms and provisions, would drastically reduce the likelihood of conflicts, save money and protect each spouse.
Today, unlike the times of our fathers, people are having second and subsequent statutory marriages. In such circumstances, a prenup will protect the inheritance rights of children from a previous marriage. Parents can also use prenup to protect their children’s fortune by making sure that the children sign the agreement before marriage. No parent would want his/her life’s work to go to someone who may have deceived his/her child with talks of love. In Radmacher v Granatino[2], the United Kingdom’s Supreme Court upheld a prenup which protected a woman’s £106m fortune.
There is also widespread spousal disappointment these days,-although men are said to be the usual culprits. It has been postulated in some quarters that women are significantly more than men and as a result women find it difficult to find life partners and men are steadily ‘breaking hearts’. Research however contradicts this number evaluation[3]. The alleged difficulty in women finding life partners is more likely because women now marry late because of education and career pursuits. Men also marry late because of the enormous financial expectations the society places on them. Will it be fair to finally cross these hurdles but still go through an emotional roller-coaster in the event of a divorce?
Furthermore, we may not want to admit it; the dynamics of marriage has changed drastically. One can only imagine what it would be 20, 30 or 50 years from now. The truth is that young people do not regard marriage the way their parents did. This is because there is less motivation to marry and stay married today. People no longer need to marry to have food on their table, have sex and children, transfer property or feel fulfilled and accommodated in the society. These reasons used to be the driving force behind societal push for marriage and protection of the institution. The change in the ‘gains’ of marriage and the way it is viewed necessarily require more circumspection in contracting it.
The issue of spousal support or maintenance is relevant in a prenup. There is a misconception that only a woman is entitled to maintenance. There is nothing like that in the relevant law[4]. These days, where a woman can earn more than the man, a man with such a wife may be granted maintenance since the primary consideration is the earning capacity of the parties. If this is so, how will a woman, who is ‘heart-broken’, feel if ordered to maintain the man who shattered her heart? This can swing both ways and provisions on maintenance in the prenup can settle such ill-feelings.
There are many other reasons for a prenup. For example, if one of the parties gives up a lucrative career after the marriage to allow the other party to pursue, say a political career, a prenup can ensure that he/she will be adequately compensated for that sacrifice if the marriage fails. A prenup can also address more than the financial compensatory aspects of marriage; and can cover other matters like payment of taxes, debts, living expenses, etc.
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