Rights of Women to husband's property during/after divorce.

Rights of Women to husband's property during/after divorce.

By

M.O.Idam,Esq.

Mary Akanbi

30th July, 2023

I must quickly say that under the  Nigerian Legal system, settlement of property among couple who are/ were married  statutorily (under the Act or by "Court Marriage") is  regulated by the Matrimonial Causes Act 1970. Sadly, the Act did not automatically qualify a woman to on ground of marriage alone be entitled to a share of her husband's property.

 Section 72 (1) of the Matrimonial Causes Act 1970  provides as follows;

“in proceedings under this decree, by order require the parties to the marriage, or either of them to make for the benefit of all or any of the parties to and the children of the marriage such settlement of property to which the parties: or either of them is entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the cases”

By this legislation, the judge who presides over  a divorce petition is  vested with the *descritionary* powers to decide how the property owned by the parties or either one of the parties to the marriage, is to be shared.This discretion must however be exercised in a way and manner  that is ‘just and equitable’. The property to be settled must belong to either of the parties to the marriage and must have been acquired during the marriage. The court cannot share a property that belongs to neither of the parties or acquired before the marriage by either of the parties.

For a party to a marriage to be entitled to any portion  of the property acquired during the marriage, such a party must show or establish that he/she has contributed in *concrete terms* to the acquisition of the property. In Valentine Agabi Kafi v. Kafi (1986) 3 NWLR 175. The wife's contention before the court was that she gave all necessary moral and financial support to the petitioner (husband) apart from performing all domestic duties as a wife and all this was established in evidence before the court. The Trial Judge held thus; “I accept her evidence and therefore finds that she contributed towards the purchase of some of the lands on which the houses ( now said to be belonging to the Husband/Respondent ) were built and that she contributed towards the development of the said properties as well as to the success of the business of the Husband/Respondent. The properties can be regarded as product of their joint efforts. She therefore deserves in my view to have a property settled on her for her benefit and that of the children by virtue of Section 72 (30 of the Matrimonial Causes Act 1970, irrespective of what the Rusband/Respondent would want to do further for the children. The Respondent/ Husband is therefore ordered to settle property at 15, Adeola Adeleye Street, ilupeju Lagos by deed on his wife/applicant accordingly” see also Okala v Okala (1973) ECSNLR 67 and Sotomi v Sotomi (1976) 2 FNLR 164* 

In view of the foregoing, it is important to note that whenever a spouse claims that  he/she contributed to the acquisition of a property or construction of a building during a marriage, this must be proved in specifics before the court can grant an order infavour of such a party. In *ONABOLU v. ONABOLU (2005) 2 SMC 135* the wife/petitioner claimed among others, against her husband that their matrimonial property be shared equally between them or sold and the proceeds of sale shared equally. The court carefully examined all the pieces of evidence given by the Wife/Petitioner and the Husband/Respondent on issue of joint ownership of the property and found that the evidence of the Husband/Respondent, positively established that he bought the land over which the property was built. The Court of Appeal held to this effect:

“It is settled law that a person who claim to be the joint owner of a property must be able to quantify his contribution. He must give detailed particulars of support  where necessary with receipts of what he bought towards the building of the property…..”

By this authorities, it is safe to say that for a woman to be entitled to a share of her husband's property during divorce in Nigeria, she must prove in specifics the extent of her contribution towards the acquisition of the property she seeks to have a share of. Howbeit, The court reservers the discretionary powers  to consider any party's entitlement on just and equitable ground See further the case of *AWE V AWE (2012) LPELR 20668* 

 

CONCLUSION

It is safe to conclude that marriage alone does not qualify a spouse to be entitled to a share of a property acquired during the marriage. A party who seek a share must prove her contribution in concrete terms.

M.O.Idam,Esq.

m.o.idamattorneys@gmail.com 

#AskAmeboLawyer