The Rights Of Woman Over Family Properties In Divorce Cases

By Isimeme Andrew Esq.

Women’s property rights at the collapse of a marital union? In light of rising divorce rates, Isimeme Andrew examines the issue under the law.

It was a very busy day at the office today and Effiong had to spend the night at his friend’s Apartment again. He couldn’t adapt to the collapse of a once beautiful family. The frequent fights, arguments have finally degenerated into an unending chaos leading to an abrupt separation between his parents. It was finally time to hear the final verdict of the judge regarding the divorce petition filed by Mrs. Adeaze against her husband Mr. Amadi after several complaints of his infidelity after 25 years of being married to him.

Judgment was given and the parties are now officially divorced. Mrs. Adeaze has refused to vacate the property despite the dissolution order according to her “she will rather die than give up a property she jointly built with her husband”.

The dilemma remains who takes what,  given the fact that Mrs. Adeaze was only married to her husband traditionally -what a typical Igbo man will call payment of Ikwu ugwo isi (bride price)?

Marriage under Nigerian Law

The Nigerian Law recognises three kinds of marriage, namely: Statutory Marriage, Customary marriage and Islamic marriage

Under the customary and Islamic marriage, a woman’s right to own property varies and is determined by culture where the marriage takes place. Nigeria has diverse cultures and traditions. For instance, a woman married under the Igbo customary law is not permitted to own properties to the exclusion of her husband and at divorce, she is not entitled to any property, as she is generally regarded as the man’s property and is not expected to entertain any form of equality.

Conversely, the Idoma community allows women to own properties separate from their husband, invariably she can as well inherit family property at divorce. The situation is different with respect to the marriage celebrated under the Act, otherwise referred to as statutory marriage, which allows a woman to own property even when an order for dissolution of the marriage is granted by the court. Usually the court exercises its discretion to ensure that family properties are divided equitably and fairly.

The combined provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Matrimonial Causes Act 1973 reinforces the right of a woman over family properties at divorce.

Importantly, Section 43 of the Constitution provides: “Every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria’’.

This section exclusively states that citizens of Nigeria are free to acquire and own immovable property, this immovable property includes fixed property like lands, factories etc. Every citizen of Nigeria is thus entitled to own immovable property according to Section 43 of the Nigerian Constitution regardless of the location, locality, gender and tribe.

In addition to this section a non- Nigerian woman married to a Nigerian husband can own properties in Nigeria only on the condition that she becomes registered as a citizen having fulfilled the necessary conditions for registration after marriage (1). Consequently, upon registration as a citizen she falls under the category of citizens who can conveniently own properties in Nigeria.

Section 42 of the Constitution of the Federal Republic of Nigeria provides for the right to freedom from discrimination. It states;

“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a person be subjected either expressly by; or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject;

From the combined provision of Section 44 and 42 of the constitution, it goes without saying that the right to own properties is not restricted to gender or marital status.

The above provisions imply that every citizen, whether male or female has the right not to be discriminated against on any basis.

Under the Matrimonial Causes Act 1973, section 72 with respect to settlement of property provides as follows: “The court may, in proceedings under this act, by order require the parties to the marriage, or either one of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such a 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 the case.”

This provision implies that the court recognizes the beneficial interests of the spouses during divorce.

Thus, making the right of women to property at divorce explicit. However, this right is not automatic as a spouse who claims an interest in the property is required to show evidence of financial contribution to the purchase of the property. In the case of Essien v Essien (2009) 9NWLR (pt. 1146) 306, 331, the court stated that direct financial contribution to the acquisition of a matrimonial home or the repayment of a mortgage is established in other to infer joint ownership. In Amadi v Nwosu (2); Sodipe v Sodipe (3)similar principle was upheld by the court.

It is our view that the aforementioned provision applies to marriage under the Act and may not make allowances for marriages under the customary and Islamic law perhaps given the varying provisions of peculiar customary and Islamic law with respect to the right of married women to properties. However, the provisions of the Married Women Property Act 1882 have laid to rest the arguments erupting from this very controversial discussion.

Mrs. Adeaze being married under the Igbo customs and tradition which limits women’s right to take over the property built with their spouse during the subsistence of the marriage at divorce, holds no water having regard to Married Women’s Property Act (MWPA), 1882. Section 1 of the Act (4) provides thus:

“A married woman shall in accordance with the provisions of this Act, be capable of acquiring holding and disposing by will or otherwise of any real or personal property as her separate property in the same manner as if she were a feme sole (5), without the intervention of any trustee”

It is pertinent to note that the MWPA does not regulate the redistribution or readjustment of matrimonial property between spouses on the dissolution of a statutory marriage. The primary aim of the MWPA in respect of disputed property between spouses is for the court to determine questions of ownership of property between spouses as it thinks fit. Whenever there is a property-related dispute between spouses, therefore, Nigerian courts interpret the provisions of the MWPA strictly to determine the extent of a spouse’s interest in the property of the other spouse. For a spouse to succeed, he or she must prove having made a direct financial contribution to the purchase or development of the disputed property based on the ordinary rules of property law

Mrs. Adaeze is entitled to the property she jointly owned with her husband at divorce, notwithstanding the position of the Igbo customary law.

Also, there is a resulting trust that naturally arises when both parties acquire property during the pendency of their marriage.[6] In such situations, the law presumes that the parties intended that the property be shared. The reasoning behind the concept of a resulting trust is essentially that it would be unfair to deny the individual who financially contributed to a property some sort of interest in that property.7 Accordingly, under the resulting trust, Mrs. Adaeze who contributed to the purchase of the property holds a beneficial interest and her husband becomes the trustee.

Furthermore, any custom that seeks to discriminate against a woman to own property jointly acquired during the pendency of a marriage will go against the principle of equity and fairness (7). Generally, customary law is recognized as a source of law in Nigeria. However, a custom sought to be enforced must not be repugnant to natural justice, good conscience and equity.

The constitution of the Federal Republic of Nigeria is the grundnorm acknowledges the right of every citizen to own moveable and immoveable properties and the freedom against discrimination by reason of sex, birth etc. (8) Thus, it is our argument that a custom that prevents the right of a woman over the property at divorce is clearly in contravention and inconsistency with the provision of the constitution and shall be void to the extent of its inconsistency(9) and is therefore repugnant to natural justice, equity and a good conscience (10).

CONCLUSION

Notwithstanding the position of the law, this custom is very much in practice. Thus, there is a need for a paradigm shift from this practice. It is the view of the writer, that the Matrimonial Causes Act of 1973 is amended, adding an addendum that would encompass the area of protecting the right of a woman over family property married under customary law at divorce, as the right to own property is constitutional, thus should not be limited simply because the marriage was contracted under customary law and not statutorily.

Although, the Matrimonial Causes Act 1973 establishes the right of a woman over property in divorce, under the stringent proof of financial contribution. More often than not, this strict approach may lead to a miscarriage of justice for the woman who has made indirect financial contributions to the purchase of the property. Thus, it is the opinion of the writer, that the court in exercising its discretion in the settlement of property established under section 72 of the Matrimonial Causes Act 1973, adopts an equity-based approach, as this will not only take cognizance of any indivisible contribution that has been made towards the acquisition of the property to be settled, as well be fair and just.

Isimeme Andrew is a lawyer at Novalux Legal Practitioners. She can be reached via Isimemeandrew4@gmail.com

DISCLAIMER: This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and our Law Firm or serve as legal advice. We are available to provide specialist legal services on specific circumstances.

Footnotes

[1] . Subject to the provisions of section 28 of this Constitution, a person to whom the provisions of this section apply may be registered as a citizen of Nigeria, if the President is satisfied that he is a person of good character; b. he has shown a clear intention of his desire to be domiciled in Nigeria; and c. he has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution. 2. The provisions of this section shall apply to any woman who is or has been married to a citizen of Nigeria.

[2] (1992) 6 SCNJ 59

[3] (1990) 5 WRN 98

[4] Married Women’s Property Act 1882. NB: this Act applies in Nigeria as a Statute of General Application. Thus, applicable to married women generally, irrespective of whether the married was contracted under customary law, Islamic or statutory law.

[5] A woman without a husband, especially one that is divorced

[6] The legal concept of “Resulting Trust” in family law is one tool that is often utilized in order to make property division more equitable (i.e fair) between spouses, particularly where spouses contributed financially to the purchase of the property. 7 “Resulting Trusts in Family Law” ‘Jasonpaulhowie.com’.

[7] In Ukeje v Ukeje, however, the Supreme Court pronounced a similar custom to be discriminatory and unconstitutional and upheld the right of a girl child to inherit properties

[8] The Constitution of the Federal Republic of Nigeria 1999 (as amended), sections 43 and 42.

[9] Ibid, section 1(3).

[10] In Mojekwu v Mojekwu the Court of Appeal declared the “Oli-ekpe” custom of the Nnewi people of Nigeria to be discriminatory. This custom allows a brother to inherit his late brother’s estate to the exclusion of the latter’s wife and female children.94 Tobi JCA queried the “Oli-ekpe” custom and considered it to be repugnant to natural justice, equity and good conscience, and inconsistent “with equity and fair play in an egalitarian society.

Credit:TheNation