Introduction

Marriages can either be celebrated under; the Act, Customary Law or Islamic Law. Most people do not enter into a marriage contract with the intention of an impending divorce. However, divorce is a part of the risks in marriage and the Law has put mechanisms in place to mitigate the outcome of this risk. 

There is a common misconception in Nigeria that upon dissolution of a marriage (divorce), half of the man’s property goes to the woman especially if they are married under the Act (what lay people call court marriage/church marriage).

Legal Principle

1. Customary/ Islamic Law

In the case of a divorce, the Customary/Islamic Law pertaining to the settlement of property will hold sway. However, such law must pass the 3-repugnancy test:

1. The Law must not be repugnant to natural justice, equity and good conscience: This means that the law must be fair and good and not one that an ordinary person would see and believe to be immoral and wrong. See the case of Mojekwu v Mojekwu [1997] 7 NWLR 283. 
2. The Law must not be incompatible with any law being in force for the time being. It must not be incompatible either directly or by implication. Ukeje v Ukeje [2014] 11 NWLR (1418) 384 and Section 1 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. The Law must not be contrary to public policy. Alake v Pratt [1955] 15 W.A.C.A 20. Public policy can be understood to mean a law or policy which has been created for the benefit of the public to solve a problem.

So, if for example, Charity and Chidozie both of whom are married under Customary Law, jointly own properties, Charity upon divorce has a right of action to ask the Court for an order to share the property notwithstanding any existing customary law to the contrary. 

Furthermore, the Married Women’s Property Act (MWPA), 1882 empowers a married woman to acquire, hold and dispose off real or personal property. This is provided in Section 1(1) of the Act:

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 femme sole, without the intervention of any trustee.  

Also, under the legal concept of “Resulting Trust”, wherein parties who jointly acquire property during the pendency of their marriage, holds beneficial interests and either party becomes a trustee of the other, a woman married under Customary/Islamic Law can seek for a sharing of the property she jointly owns with her husband.

Additionally, Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as the grundnorm, affirms the right of every citizen to own moveable and immoveable properties, anywhere in Nigeria. 

It therefore follows that, upon divorce of a marriage constituted under Customary/Islamic Law, if both parties jointly acquired a property and the contribution towards the acquisition of that property can be proven, a woman is entitled to her fair share of such property or from the proceeds of the sale of the property. 

2. Marriage Under the Act

For a Marriage under the Act, the provisions of the Matrimonial Causes Act (MCA), 1973 is quite clear.

Section 72 of the Act provides thus:

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. 

What does this Section mean?

1. The Relief for a Settlement of Property must be contained in the Petition for the Dissolution of Marriage.
2. The property can be owned jointly by both parties or by either of them. 
3. The property can either be real or personal
4. The party claiming a share of the property or the proceeds from the sale of such property must show evidence of contribution towards the acquisition of the property. 

The Court in Kafi v Kafi [1986] 3 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 these were proven. 

The Trial Judge held inter alia …

I accept her evidence and therefore find that she contributed towards the purchase of some of the lands on which the houses 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 ruling to have a property settled on her for her benefit and that of her children by virtue of section 72 (30 of the MCA 1970), irrespective of what the husband/respondent would want to do further for the children. The husband is therefore ordered to settle property at 15 Adeola Adeleye Street, Ilupeju, Lagos by deed on his wife/applicant accordingly.

5. The settlement of the property may be for the benefit of both parties, either of the parties and the children of the marriage. 
6. The Court holds the discretionary power in considering what is just and equitable in the settlement of the property based on the circumstances of the case. 

Debunking the Myth

Contrary to popular belief, the settlement/sharing of property at the instance of divorce, whether for a Marriage under the Act or Customary/Islamic Law is not automatic. In Marriage under the Act, the party seeking for this relief must request for it and if in a Customary/Islamic Marriage if the Customary/Islamic law pertaining to settlement of property upon divorce discriminates the party seeking the relief, such law shall be considered null and void. 

This is in so far as, the party seeking the relief shows concrete proof as to his/her contribution towards the acquisition of the property. 

Conclusion

It is important to note that while people especially women marry under the Act with the misguided belief that upon divorce, the property of the man will be shared equally or when men are reluctant to marry under the Act due to this false belief, this relief is not automatic and it does not relate to women alone, although in our part of the world, women are more generally going to seek for a settlement of property. It is therefore advisable to seek legal counsel when considering this relief. 

Written by Esther Ibeh