The Family Constitution

Every family already has a constitution. Very few have written it down, which is why nobody discovers what it says until somebody breaks it.

The unwritten one is real and it has force. The eldest speaks first. The land in the village is never sold. School fees are found for every sibling's last child. In-laws do not attend the meeting where money is discussed. A younger brother does not contradict an older brother in front of others. The founder's word ends the discussion, and the discussion was never really open.

These are rules. They are obeyed, they carry sanctions, and they have governed the family for forty years. What they cannot do is three things, and each of the three is fatal at exactly the moment the family most needs governing.

An unwritten rule cannot be consulted, cannot be amended, and cannot answer a question it has not met before.

The essay on the second-generation question names this as the fourth failure mode: a family with assets and no rules, in which every transition is renegotiated under pressure by whoever has most to gain. This essay is the instrument that answers it — what a family constitution contains, whether and how it binds, how it is drafted and adopted, and how it changes across generations without being abandoned.

One claim should be made at the outset, because it governs everything that follows. The document matters considerably less than the process that produces it. A constitution drafted by counsel and circulated for signature is a memorandum. The same text, produced across a year of meetings in which the family argued and decided, is the first experience the family will ever have had of governing itself — and that experience, not the paper, is what survives the founder.

The defects of the unwritten version are worth setting out precisely, because a written constitution that does not fix them is merely a longer version of the same problem.

It cannot be consulted. A rule that exists only in the practice of the family cannot be read by a person who was not present while it formed — the in-law, the child raised abroad, the grandchild, the trustee, the executor. Everyone acts on a version of it, and the versions differ in ways nobody discovers until the versions collide.

It cannot be amended. There is no mechanism, because there is no text and no body with authority over it. Change therefore happens only through breach: somebody does the thing that was not done, survives the consequences, and a new rule quietly exists. That is an expensive way to legislate, and it rewards whoever is willing to absorb the most disapproval.

It cannot answer a new question. Unwritten rules are precedents, and precedents cover only what has already happened. When the first family member proposes to bring a spouse into the business, or to sell an inherited share, or to move abroad and take no further part, the family has nothing to consult. It has only its instincts, and instincts differ by generation and by branch.

And it is enforced by temperament rather than by authority. In the absence of a stated rule, the operative rule is whatever the most persistent person is prepared to insist upon. Families describe this as strong personality. It is more accurate to call it what it is: an allocation of governing power to whoever minds a quarrel least.

Written rules favour whoever is right. Unwritten rules favour whoever is willing to be unpleasant for longest.

This is the first question Nigerian lawyers ask about a family constitution, and it deserves a direct answer rather than the evasion it usually receives. Standing alone, most of it does not bind, and a family that treats the document as a contract will be disappointed in the only week it matters.

But the question is the wrong one, for a reason worth stating carefully. A family constitution contains three different kinds of provision, and they acquire force in three different ways.

The first kind is declaratory: what the wealth is for, what the family believes it owes its members and its community, how members undertake to treat one another. These are not justiciable and should not be drafted as though they were. Their function is to state a standard against which conduct can be measured in a room, which is the only forum in which most family disputes are ever actually resolved.

The second kind is procedural: how the council is composed, how often it meets, what majority is required for what, how information is circulated. These bind through legitimacy and repetition rather than through law. A procedure followed for ten years is extremely difficult for a member to depart from, not because a court would restrain him, but because everyone in the room knows what the procedure is and he will have to explain himself.

The third kind carries real legal consequence: who may work in the business and on what terms, whether shares may pass to a spouse, at what price a member may exit, what a trustee shall have regard to when exercising discretion. These provisions cannot rest in the constitution alone. They are mirrored — the same substance written into an instrument that binds. The employment provisions become terms of employment contracts. The share provisions become articles and a shareholders' agreement. The distribution provisions become the trust deed and the letter of wishes. The constitution states the family's policy; the instruments carry the policy into law.

It is possible to go further, and sometimes right to. Adult members may execute the constitution as a contract or a deed of family arrangement, binding themselves inter se on matters within their power. That is a genuine option and it strengthens the document considerably. Its limits should be understood before it is proposed: minors cannot be bound, the unborn cannot be bound, members who decline to sign are not bound, and no family agreement can oust the jurisdiction of a court or defeat a right that statute confers on a beneficiary or a spouse. A constitution that overreaches on this point invites the challenge it was written to prevent.

What follows is the architecture of the document. The order matters: purpose before membership, membership before decision-making, and amendment last, because a family that has argued its way through the first six will draft the seventh with unusual care.

Here is the claim from the opening, now that the contents are on the table. A family constitution produced by a lawyer and sent out for signature has almost no value. The identical text produced by the family across a year of meetings has a great deal, and the difference is not the paper.

The reason is that the constitution's only real enforcement mechanism is legitimacy. Nobody is going to court over Article 5. What actually happens, in the year the policy is inconvenient, is that a member is asked to accept an outcome he does not like — and whether he accepts it depends entirely on whether he believes the rule was made properly, by people including him, at a time when nobody knew who it would bite. That belief cannot be manufactured afterwards. It is produced only by having been in the room.

The practical shape is a series of meetings over nine to eighteen months, one article at a time, with a written note of what was decided circulated after each. The founder should be present and should speak last, which is difficult and is the single most valuable thing he can do. Adult members of the second generation are participants rather than audience. The third generation, where old enough, attends the sessions on purpose and on work, because those are the articles they will live under longest.

A facilitator helps, and should not be the family's lawyer. The two roles are genuinely different: the facilitator's job is to ensure that the quiet branch is heard and that the meeting reaches a decision, while counsel's job is to draft what was decided and to advise on what will and will not carry legal force. When the lawyer facilitates, the discussion narrows to what is legally tidy, and the family ends up with an elegant document about the wrong subjects.

One discipline governs the whole exercise: the drafting follows the deciding. Counsel produces text after a session, not before it. A family presented with a draft will edit it, and editing is not deciding. A family given a blank article and a question will argue, and the argument is the asset.

The document is not the constitution. The document is the record of a family that governed itself once, deliberately, in advance — and that is the experience it is trying to make repeatable.

A family that has never decided anything together will not begin at a funeral.

Adoption should be deliberate and slightly ceremonial, because the ceremony is part of the point. The final text is circulated in advance, adopted at a meeting rather than by correspondence, signed by every adult member present, and dated. Members who decline to sign are recorded as having declined, without penalty and without argument; a constitution that requires unanimity to exist will not exist.

Then the mirroring, which should happen within the same quarter while the goodwill is intact. Employment provisions into contracts and into the office's and foundation's terms of appointment. Share and exit provisions into the articles and the shareholders' agreement. Distribution policy into the trust deed and the letter of wishes, so that the trustee exercising a discretion has something proper to have regard to. A constitution whose legal provisions were never mirrored is a family's statement of what it wishes were true.

Distribute it properly. Every adult member holds a copy; the trustee holds a copy; the family office holds the authoritative version and the record of amendments. Members who join later — by marriage, by majority, by birth into the class — are given it as a matter of course, which is a small administrative habit that does more for continuity than any clause inside it.

And then the test, which arrives sooner than families expect. Within about two years, the constitution will produce an outcome that the most powerful person in the family does not want. He will be entitled to a hearing, entitled to propose an amendment, and not entitled to disregard it. What happens in that week determines whether the family has a constitution or a document, and the family will know the answer immediately, whatever anyone says afterwards.

A last observation for the sceptic, and there is one in every family. The objection to a family constitution is usually that it is unnecessary — that this family is close, that these siblings do not fight, that the founder's wishes are perfectly well understood. That objection is not wrong about the present. It is wrong about the timing.

Constitutions are drafted by families who do not need them yet, which is the only condition in which the drafting is possible. A family that has begun to need one has already lost the thing that makes the exercise work: the ability to write a rule without anybody in the room knowing whom it will one day be used against.

Every family is already governed by rules. Unwritten, they cannot be consulted, amended, or applied to a question they have not met. What binds is mirrored into instruments; what remains is held by legitimacy — which is made in the drafting or not at all.

A constitution is written by a family that does not yet need one. That is not a reason to delay it. It is the only condition in which it can be written.