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EMPOWERING WOMEN
BOX 2.6
Alternatives to Default Marital Property Regimes: Prenuptial and Postnuptial Contracts In many civil law countries (such as Benin, Madagascar, Mauritania, and Senegal) and common law countries (such as Botswana, Ethiopia, Namibia, Nigeria,a Kenya, South Africa, and Swaziland), parties to a marriage can select or vary the marital regime by signing prenuptial contracts. (In some countries, spouses can also vary the marital regime during the marriage, through a postnuptial agreement.) In pre- and postnuptial agreements contracts, the spouses agree on how property will be owned in marriage and distributed on separation. The laws of most countries demand that prenuptial agreements be made in front of a notary before or on the day of marriage. Such contracts give room for the parties to determine their property (and other rights), allowing them to add whatever clause they see fit before the marriage. Without such an agreement, the default regime comes into play. Prenuptial agreements can be advantageous for women, but few African women use them, because they lack knowledge of the law or are reluctant to jeopardize their relationship by proposing one. Many women may own limited property and do not see the value in making such an arrangement. Where bargaining power between the spouses is unequal, prenuptial and postnuptial agreements can deprive women of their rights under a statutory regime. Prenuptial agreements can cover more than just assets. In Mauritania, for example, Article 28 of the Personal Status of Persons Code 2001 provides that “in a marriage contract, the wife can stipulate that, the husband should not get married to another wife, should not prohibit her from continuing her studies, should not prohibit her from working, should not be absent for a certain period of time, and any other conditions not contrary to the finality of the marriage contract.” Article 29 states that “the partial or total breach of the above conditions by the husband will lead to judicial dissolution of the marriage initiated by the wife and an assistance of consolation, the amount which will be determined by the judge.” Source: Kamangu 2009. a. Nigeria does not offer the option of a community of property regime, but it recognizes prenuptial and postnuptial agreements under Section 72(2) of the Matrimonial Causes Act (1990) of Nigeria.
home can be jointly owned by the spouses, but both have to make an express agreement specifying so, such as registering the title in both their names. One might expect this regime to protect women, because it allows them to own and manage their property separately, an advantage particularly for women in business, who then can use a title to property to access credit. In fact, a woman’s rights may not be protected where her contribution is in the home or in a family business