This article was first featured in the Insight newsletter.
By Toyin Oyemomi, Esq.
Introduction
Few areas of matrimonial law expose the tension between love, labour, and law as sharply as the division of property after divorce. Nigerian courts, armed with Section 72 of the Matrimonial Causes Act, must decide not who is loved more, but who laboured more; and what counts as labour at all.
There is a general belief that parties to statutory marriage are equally entitled to the properties acquired during the pendency of the marriage, however compelling this may be, it is untrue and not legally binding. Also, a spouse named on a title document, does not totally exclude the other party from being entitled to the property, if certain factors like labour, time and resources can be adequately seen to have been contributed in its development. Hence, issues regarding settlement and distribution of property(ies) after a divorce are not only contentious but resorts to lengthy trial in matrimonial proceedings. This article shall examine the legal frame work for settlement of property(ies) in matrimonial proceedings, while considering a range of decided cases, rationale for the decisions and our legal opinion on the justiciability of those decisions.
Statutory Framework: Section 72 of the Matrimonial Causes Act (MCA)
Settlement of properties in Matrimonial proceedings is governed by the Matrimonial Causes Act, applicable only to marriages celebrated in accordance with the provisions of the Act. The of the Court to settle properties is power conferred by Section 72 (1) of the MCA which provides thus:
“The Court may in proceedings under this Act, by order require the parties to the marriage or either of them to make for the benefit of all or any parties to, and the children of the marriage, such a settlement of property to which the parties are, or either of them is entitled to (whether in possession or reversion) as the Court considers just and equitable in the circumstances of the case.”
Apparently, by the provisions of Section 72 of the MCA, the power of the Court in settlement of properties, is undoubtedly not restricted to properties jointly owned or contributed to by parties, but extends to properties owned by either party. It also implies that property(ies) can also be settled in favor of either of the parties to the marriage or the children of the marriage. The primary reference of this section is therefore not joint ownership or contribution, but what is just and equitable in the circumstance of each case.
Judicial Interpretation and the Question of Contribution
Judicial decisions have immensely contributed in developing the law of property settlement between parties to a statutory marriage in Nigeria. In one of the decisions of the Court, it was held that the property sought to be settled must have been bought, paid for or developed in the course of the marriage.
SUNMONU v. SUNMONU (2021) LPELR-56002 CA.
The Court exercised its discretion in favor of the Respondent and held that although the property
was acquired by the Appellant before the marriage and developed by the Appellant during the marriage, possession of the apartment was awarded to the Respondent and the children for her lifetime (except she remarries). The rationale for the Court’s decision was on the basis of the Respondent’s age, the length of the marriage and the fact that the Appellant had moved out of the matrimonial home for about 7years before the judgment was delivered.
Furthermore, the Court also considers the contribution of the party in the acquiring and development of the property. Contribution to the acquisition of the property does not necessarily have to be in form of cash, it could be by way of moral or financial contribution to the business of the spouse by the other spouse, where the property is purchased from the profit of the business. The Court also considers whether or not the property or some other property was acquired by the parties or one of the parties during the course of the Marriage and the contribution of each of the parties towards acquiring the property(ies), SUNMONU v. SUNMONU (Supra).
In addition, the Court in KAFI Vs. KAFI (1986) 3 NWLR (Pt. 27) 175 regarded the properties as that of the Petitioner and the Respondent and ordered the Respondent to settle a property in favor of the Petitioner on the premise that the Petitioner was able to prove that all necessary moral and financial support was given to the Respondent apart from performing all domestic duties as a wife. The Court ordered the property to be settled in favor of the petitioner irrespective of what the Respondent would want to do for the children.
It is pertinent to note however that the party claiming contribution has the duty to place concrete evidence of contribution to the acquisition of the property before the Court.
The Court in exercising its discretion must however, do what is just through the law not giving effect to private opinion.
DOHERTY v. DOHERTY (2010) ALL FWLR (PT. 519) 1165.
Equity, Gender, and Discretion
The Nigerian approach to matrimonial property settlement, rooted in judicial discretion rather than codified sharing, creates uncertainty but allows flexibility for equity. The law places high credence on exercise of discretion by the Court as against a clearly codified law on settlement of property.
The present state of the law leaves so many vulnerable spouses, especially women, who
settled for maintenance of the family at the expense of their financial freedom at the mercy of the discretion of the Court, which may be exercised in their favor or against the applicant. This may discourage potential litigants from seeking respite in Court.
Conclusion: Towards a Fairer Standard
Every case is peculiar in itself, the current primary consideration of the Court tilts more to exercise of its discretion.
However, a codified and definite position of law on settlement of properties, will resonate better with prospective litigants, will make the legal process more predictable and less stressful, while also providing a guide to spouses in their decision making prior to any issues arising.
Toyin Oyemomi, Esq. is an Associate Partner at Liberty Semper Fidelis LP