Dissolution Of Marriage And Property Sharing In Nigeria.

This is a very interesting one off article...Did you know that there was a recent Supreme court Judge on the right of Female Children to inherit their Father's property?

This writeup explains better what you read yesterday concerning this Issue..

In Nigeria, we have three types of marriage. Islamic Marriage, Traditional marriage and marriage under the Act. However, we will limit this write up to just 2; traditional marriage and marriage under the Act.

Marriage under the Act is one done at the Registry.(Please note the recent ruling in Lagos State that prohibits Ikoyi Registry from conducting marriages as this power lies with the local government and not Federal Government. We will look at this issue next time). 

 Now, the church marriage at times can be one under the Act as some churches take the marriage register from the marriage registry of the local government to sign once the church is given license to conduct marriage. Therefore some churches like the Anglican churches and the Catholics, Baptist churches and those old churches most times have this authority. 

This is the reason you are asked to go fill a form at your local government /registry and it's pasted for a duration of time. That's the requirement of the law. Marriage under the Act is governed by Matrimonial Causes Act, 1970. Yes, it is that old but there are some sections modified in early 80s.

Now, to the Traditional marriage, the law put into consideration our culture. Before the marriage Act came into force, traditional marriage was the only form of marriage. Of course, the drafters of the matrimonial Act 1970(regulating marriage under the Act or Statutory marriage) will never shut their eyes to the existence of traditional marriage‎. That's why some sections of the Act specify that no marriage contracted before this Act shall be invalid because of this new Act. It is as valid as the marriage under the Act but on different levels. 

NOTE that Customary court is the only court that has jurisdiction to sit on issues arising from Traditional marriage . However, in Eastern part of Nigeria and some south/ south part, dissolution of marriage is not complete until the dowry is returned. In Lagos state now, customary courts do not have power over custody of children. Custody matters will be referred to family Court. On the other hand, High Court is the only court that has jurisdiction over marriage under the Act.


Then the Act says: if there is a marriage i.e a traditional marriage or marriage under the Act that is first in time, no other marriage contracted i.e court /church marriage‎ (statutory marriage) or traditional marriage shall be valid and vice versa. A certain man married his first wife traditionally and married the second under the Act. Upon his death, the traditional marriage was recognised over the other marriage. Yes that is the law.

I hope you get the gist now. I always say the Act envisaged that some greedy men would want to go marry some educated women who would drag them to court to marry them thinking she will be the 'legal' wife without properly divorcing the one you married traditionally. OYO is your case oh.

Dissolution of Marriage And sharing of properties.

I always advise couples to have both their names on any property they own. E.g Mr. A Lion and Mrs. B Lion and not Mr. And Mrs. A Lion. II will explain‎. You see, even in the high Court, if you are claiming joint ownership, you are expected to prove by evidence of receipts SHOWING you bought blocks, chairs, roof etc. This is the common law situation where a man is regarded as the head and the owner. Some of us lawyers have tried to make the courts see that this is no longer tenable. 

The time spent with the man, the support a woman gives to her husband to acquire those properties assuming the wife isn't even working and perhaps doesn't bring a dime to the table, what about her time spent in catering for the children, supporting the man, cooking etc (wife not cook, yes oh. Loll)‎, making sure the house is fixed and time spent in tending to the man, his family and friends! Is this law or practise encouraging partnership in marriage? Are we not breeding a situation where the moment two people marry, they start keeping tab on what they bought, keeping receipt etc (someone even told me that she was already planning to leave her marriage because she kept receipts.

 That's not fair to say! Am sure she never planned for her marriage to end abruptly) but unfortunately, we don't have radical Judges anymore that will deliver a judgement partitioning the properties without evidence of contributions. The clients too are not ready to go all the way maybe to appeal court so that one can have the stupid judgements upturned! 

In some cases, the courts have stated that the other party merely holds the property in trust. It is called constructive trust. See Nicholas Okere vs Theresa Akaluka CA/PH/114/2006 and also Amadi vs Nwosu (1992) 5 NWLR(pt 241) 273. the C/A stated in the case that: ‘Coming home to the concept of "Constructive Trust" which the learned Author canvassed at pages 513-517 of the text, reference was made to Lord Denning's dictum in Hussey v. Palmer (1972) 1 WLR 1286, where the Master aggrieved spouse or party to obtain restitution and the success of the party's case does not depend on his or her direct physical or monetary contribution to the building or acquisition of the property. 

Thus in England, (and we see no reason why this principle should not be applicable in Nigeria especially in this Millennium), the Courts have held that if matrimonial property is purchased in the name of one of the parties (as in this case); the party in whose name the property was conveyed held same as a constructive trustee for the benefit of both. 

In this wise, Lord Denning once more was incisive as ever in the celebrated case of Falconer v. Falconer (1970) 1 WLR 1333 when he intoned; "This inference of a trust, the one for the other is readily drawn when each has made a financial contribution to the purchase price or the mortgage installment. The financial contribution may be direct as where it is actually stated to be contribution towards the price or installments. It may be indirect, as where both go out to work, and one pays for the housekeeping and other the mortgage installments. It does not matter who pays what so long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust………….. 

In KAFI v. KAFI 1986 NWLR 175, the wife argued 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. The Trial Judge said in his judgement;

“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 a 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 ruling to have a property settled on her for her benefit and that of the children.

Reading this authorities, it is clear unfortunately that proving the ‘constructive trust’ is still tied to one thing ‘contribution’ either directly or otherwise and again, the court referred to a foreign case law; that’s why the court expressed his concern over the way we practise it in Nigeria (he sees no reason why it cannot be applied in Nigeria). This is why I stated we don't have radical Judges anymore that will deliver a judgement partitioning the properties without evidence of contributions but to just show that a marriage subsists between the parties. 

It is my believe that we will get to the point where even a wife or husband who does not work and does not have the capacity to contribute financially will have property settlement in his or her favour because this is what is fair and equitable in such circumstance.

 The recently decided Ukeje’s case (supreme court decision on right of female children to inherit late father's property)is one great feat and I hope we women can actually fight like Ada Ukeje. Loll . Till we have a supreme court jugdement upturning all these unfair practises against women, please, the convenient thing to do is to have both names on the property e.g Mr. Fowl Chicken and Mrs. Hen Chicken.

*This was a good one...Thank you Babes!