Introduction
Most customs and traditions in Nigeria do not recognise the rights of married women to own personal properties or lay claims to the properties of their spouses upon their demise or in the event of divorce or separation.
This is based on the cultural belief that a woman has no right to acquire and own property, as everything owned by the woman is believed to belong to the husband. This custom is based on the belief that a woman herself is a property of the husband; a property bought with the bride price and as such, cannot by herself own another property because a property cannot acquire property. Consequently, it is the prevailing custom that all property owned or acquired by a wife during the subsistence of the marriage, including her business interests, belong to the husband, and that such acquisition requires his prior consent, as he is deemed to have absolute control over her property. In other cultures in Nigeria, however, a wife may be allowed to own both personal and real property, which are always regarded as being separate and distinct from that of the husband.
Notwithstanding the above, Nigerian statutory law recognises the rights of women married under the act to solely own separate properties from their spouse.
Legal Stance Under The Statutory Laws
The Married Women's Property Act, 1882 provides the right of married women to own and acquire properties as though they were single. It provides in Section 2(1) that "a married woman shall be capable of acquiring, holding and disposing of any property as if she were a single". It further states in section 3(1) paragraph (III) that "all property which on or after the 1st day of June, 1914 is acquired by or devolves upon a married woman shall belong to her in all respect as if she were a 'feme sole' (a single woman) and may be disposed of accordingly".
Following the enactment of the Marriage Act, 2004 and the Matrimonial Causes Act, 1990 (the "MCA"), a married woman can own separate and private properties from her husband as though she was never married in the first place. Section 43 of the 1999 Constitution of the Federal Republic of Nigeria also guarantees the right of every citizen to acquire and own immovable property anywhere in Nigeria.
On the other hand, where a property is jointly owned by spouses, in the event of divorce or separation, the property will be shared between the spouses. The legal question that comes to mind at this point is how to prove ownership or co-ownership of property between spouses.
For a claim of ownership of property to succeed in this regard, the spouse must show that he/she purchased the property, and to prove co-ownership or interest in a property, evidence must be produced as to the financial contribution of the spouse to the acquisition of the property. Therefore, for a spouse to succeed in the claim for property rights, he or she will have to prove that he or she contributed 'financially' towards the purchase and development of the property.
In several cases, Nigerian courts have held that where a spouse (which in most cases under judicial review is the wife) cannot show any financial contribution in the acquisition of a property, her claim for a right in such property will fail, as the court only considers financial contributions made towards the acquisition of the property; disregarding any other type of beneficial contribution.
To mitigate this harsh position of the law, Section 72 of the MCA provides that the "court may in proceedings under the Act 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 are or either of them is, entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of each case." This simply means that where parties are in court for dissolution of marriage and consequent distribution of properties acquired in marriage, the court will consider what is just and equitable in the distribution of the property.
While what is just and equitable may be relative and open to interpretation based on the facts and circumstances of the case and the mind of the court, the court is guided to make these orders with recourse to the natural law theory of justice, equity and good conscience.
Also, Section 73 of the MCA gives courts powers to make financial provisions for spouses in proceedings for maintenance, custody and property settlement. The problem with this is that the Nigerian courts generally do not distribute the proceeds from a property equally, where there is no proof of equal contribution to the acquisition of the property. There is no laid down procedure on how these distributions are made, and in most cases, what is just and equitable is left to the discretion of the court, which may in most cases be unfair.
In the case of Sodipe v. Sodipe (1990) 5 WRN 98, there was no evidence of financial contribution by the wife. The court, however, having valued the particular property to be worth ₦10,000,000.00 (Ten Million Naira only) ordered the wife to be paid ₦200,000.00 (Two Hundred Thousand Naira only) after 43 years of marriage!
The Married Women's Property Act, 1882 does not offer any assistance as the Act made no provision as to the mode of distribution of properties in the event of divorce between spouses. It only encouraged married women to acquire separate properties.
It is pertinent to note the fact that under customary property law, even if the properties are separately owned by the wife or jointly owned by the spouses, same cannot be redistributed by the court even upon the application of a spouse for the benefit of either spouse or the children of the marriage.
This limitation highlights one of the fundamental issues associated with customary law marriages in Nigeria unlike marriages contracted under the Marriage Act, where statutory provisions allow the court to exercise its discretion to equitably distribute property amongst couples. See cases of Okonkwo v. Okonkwo (2014) LPELR-22408(CA), Suberu v. Sunmonu (1957) WRNLR 33 and Ejiamike v. Ejiamike (1972) ECSLR (Pt. 2) 11.
Conclusion
The courts in Nigeria will usually require evidence in the issue of distribution of properties amongst spouses as it considers it unfair to equally distribute the proceeds of a property amongst spouses, where there is no proof that a spouse made any financial contribution towards the acquisition of the property.
Until our laws are amended to include other types of beneficial contribution, it would appear prudent that women married under the Marriage Act, not only purchase properties in their own name, separate from their spouse, but also document each financial contribution made to the husband towards the acquisition of any property and certainly, any property co-owned by the spouses, should be purchased in the name of the spouses.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
