Property state of mind:

PRE-NUPTIAL MARRIAGE AGREEMENT ON REAL PROPERTIES.

A pre-nuptial or ante-nuptial marriage agreement is a written contracted executed

between intending marriage couple. These agreements are usually discussed, prepared
and signed prior to marriage. It may cover a whole lot of diverse subjects as it spells out
each parties’ property rights during the marriage and in the event that parties later get
divorced. When this agreement is made in relation to real property of the parties, it
becomes a real property pre-nuptial agreement.
Pre-nuptial agreement on real properties has not gained the much popularity in Nigeria
as it is in some other African countries such as South Africa. South Africa has a law
governing the various matrimonial property systems.
Despite its unpopular nature and lack of sufficient legislative instrument in Nigeria, the
validity of pre-nuptial contracts is sacrosanct. Like every other contract, a pre-nuptial
agreement duly executed by intending spouses in Nigeria prior to completion of
marriage is valid and legally enforceable provided there are no vitiating elements. More
so, The Matrimonial Causes Act of Nigeria sparsely provides the basis for the validity of
pre-nuptial agreements in Nigeria.
Section 72(2) of the Matrimonial Causes Act provides as follows:
“The court may, in the 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
parties to, and the children of, the marriage of the whole or part of property dealt with by
ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of
them”.
There is no laid down procedure, guidance or form with respect to the terms of a pre-
nuptial agreement on real property, however, any form is generally valid provided the
general terms of a contract are complied with.
Some times a party who is suspicious or skeptical of the true intention of the other party
towards the marriage union might want to protect their property interests before saying ‘I
do’. For instance, a well-established man or woman with lots of landed properties may
enter into this kind of agreement to protect the interest of their property in future
especially if they are unsettled, doubtful or confused about the true intention of their
partner. The most common instance of a pre-nuptial agreement is where a widow or
widower or one who separates from a spouse is seeking to protect the property
interests of children from previous marriage.
As good as this may appear, it may also bring some bitter pills to the marriage if not
carefully and properly explained or handled. The proposition of pre-nuptial real property
agreement may cause an unintended discomfort or hurt the feelings of the other party
especially when such party has true and innocent intention towards the marriage union.
Finally, a pre-nuptial real property agreement is a registrable instrument and should be
registered in the Deed Registry.

Living Sokarite Davies is a Property Advisor who writes from Port Harcourt/Lekki,
Lagos.