#Hope Classic

Can husband dispose joint property without wife’s consent?

By Bamidele Kolawole

|

Marriage, whether conducted under statutory, customary, or Islamic rites, transcends the ceremonial union between individuals. However, there are legal implications concerning property rights and inheritance among couples.

Jerry Adeyogbe Esq

The general rule, is that a married couple can jointly acquire or dispose off a property, yet either party can not dispose off such property without the consent of the other party.

It has been well settled in plethora of decided cases, that where a property is jointly owned by a  couple, either party can’t dispose off the property or deal with the property without the consent of the other party.

In the case of KOBUWA & Anor v LAMUDU & Anor (1998) LPELR-6364 (CA), It was held that: “where the property is jointly owned by more than one person, each of the joint owners does not own any part of the property which he can singly dispose off until the property is partitioned”.

By implication, no party can on his/her own sell the property jointly acquired by them, rather each of the signatories must sign the documents.

Ifeoluwa Ayodapo-Ajayi Esq

In Nigerian parlance, there are three major forms of marriage recognized: Marriage under the statutes, traditional marriage, and Islamic marriage. However, irrespective of the type of marriage contracted between a man and a woman, the major issues affecting the peaceful existence of marriage are divorce, custody of children, and rights to property.

Beyond the exquisite invitation cards, expensive aso ebi outfits, exotic venues and hotels, party jollof, small shops, and the ever-bubbling after-parties, marriage is a contract that may end either through human freewill (divorce) or by the act of God (death).

Hence, it is crucial to emphasize that the rights of parties to marriage are equally governed and protected by relevant laws and regulations. In this discussion, we will consider some salient questions: Can a husband dispose off joint property without the consent of the wife?

The 1999 Constitution of Nigeria guarantees the right to own property under Section 43, stating that every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria. This right is fundamental and cannot be violated by any person, custom, religion, or law.

Ordinarily, couples can jointly own property, which is referred to as joint ownership. Under joint ownership, couples who share equal ownership of certain property automatically have equal and undivided rights to keep or dispose off the property.

This means that neither the husband nor the wife can independently dispose off joint property without obtaining express consent from the other party. Given the increasing prevalence of divorce cases in Nigeria, it is essential to state that in cases where joint owners of property dissolve their marriage, the husband cannot dispose off or transfer their joint property without his wife’s consent.

However, this stance does not deprive couples of survivorship rights. If a wife dies during the marriage, the right to joint property shifts to the surviving partner. Nigerian law has made significant strides in ensuring gender equality in inheritance rights.

Equal rights regarding inheritance are granted to husbands and wives under different states’ succession laws in Nigeria, such as the Lagos State Law of Inheritance (2004). This implies that upon the death of either spouse, both spouses, regardless of gender, are entitled to inheritance from their spouse’s estate.

Article 7 of the “Protocol to the Charter on Human and People’s Rights on the Rights of Women in Africa,” ratified by Nigeria, states that both parties of the marriage shall enjoy equal rights within and outside the marriage concerning custody and access to an equitable share of joint property derived from the marriage.

In the case of Kobuwa & Anor v. Lamudu & Anor (1998) LPELR-6364 (CA), the question of whether a joint owner of land can transfer title to land without the consent of the co-owner arose. It was held that “where the property is jointly owned by more than one person, each of the joint owners does not own any part of the property which he can singly dispose off until the property is partitioned.

”Does the wife have any rights over her husband’s property? What are the rights of the husband over his wife?Parties to a legal marriage have equal and undivided rights to own, control, use, and dispose off any joint property, regardless of the weight of contribution made by each party. They can jointly exercise rights in respect of the property.

Generally, when a man dies, his wife is entitled to inherit his property in Nigeria.

A widow under statutory law is entitled to a share of her late husband’s property under the Administration of Estate Laws of various states in Nigeria.

If her husband left a will, the will determines the share of the estate she is entitled to. If a husband dies without a will, the Administration of Estate Law of the state will apply.

Both the Administration of Estate Law and Common Law prescribe that on the death of the husband, the wife will come first in the order of people to benefit from the deceased husband’s estate.

Related News  Conditions that will make court vacate its decision

 Article 21 of the Protocol to the Charter on Human and People’s Rights on the Rights of Women in Africa provides that a widow or widower shall have the right to inherit each other’s property in the event of death, regardless of the type of marriage, and to continue living in the matrimonial home.

However, any property acquired by a woman both before entering into a marriage and during the marriage independently remains her separate property. She is free to manage or dispose off the property as she deems fit without undue interference from her husband. This right is guaranteed under the three types of marriages in Nigeria.

The Married Women’s Property Act (a federal law) provides in section 1 that a married woman shall be capable of acquiring, holding, and disposing of any real or personal property as her separate property, in the same manner as if she were an unmarried woman, without the intervention of any trustee. The Quran recognizes women’s right to acquire and utilize property through purchase or inheritance from their husbands.

Women have control over assets they purchased independently and received as gifts.Aderounmu v. Aderounmu (2003) 2 NWLR, Part 803, Page 1: The issue before the court was whether a married woman was capable of acquiring, holding, and disposing off her property. The court granted an order asking the husband to vacate property belonging to the wife as the sole owner and an order directing the husband to hand over to the wife the Land Rover Jeep being property belonging to the wife.

Section 12 of the Married Women’s Property Act provides that a wife can bring civil or criminal proceedings against any person, including her husband, for the protection and security of her own separate property provided that the act was committed, and criminal proceedings are instituted against her spouse when they are no longer living together.

The legal position of the property rights of women has been clarified by the introduction of statutory marriage in Nigeria, through the enactment of the Marriage Act and the Married Women’s Property Act, which granted married women the right to own their own separate property as if they were unmarried.

Does the wife constitute part of the husband’s estate capable of being shared? Under several customary laws in Nigeria, a woman is considered a mere property that should be shared with other personal and real estate of the deceased husband.

However, the constitutional provisions are clear and unambiguous on the issue of the right to own property.

Despite the lack of ambiguity in the 1999 Constitution, women in Igbo land are not entitled to inherit any real property from their parents and husbands. Also, under Yoruba tradition and custom, women are not entitled to the property of their late husbands.

In the case of Oshilaja v Oshilaja (1972)2 UILR, 313, 10 CCHCJ II, it was held that a widow cannot inherit because as a chattel under native law and custom…she could be inherited.

The Supreme Court reaffirmed the same decision in Akinnubi v Akinnubi (1972)2 UILR, 313, 10 CCHCJ II. It is a well-settled rule of native law and custom of the Yoruba that a wife wouldn’t inherit her husband’s property. Under intestacy, she is regarded as part of the estate of her deceased husband and to be administered and inherited by the deceased family.

In recent times, Nigerian courts have taken a cursory look and drastically changed their view on the issue of women’s inheritance. In the case of Suberu v Sunmonu (1957) 2 FSC, 23, the court stated that the rule of native law and customs of the Yoruba that a wife could not inherit her husband’s property, since she herself is, like chattels, to be inherited by a relative of her husband, should be thrown into the doldrums of history and declared repugnant to natural justice, equity, and good conscience. Presently, there are different laws and international statutory provisions protecting the rights of women.

 In affirmation of these laws, the Supreme Court addressed the issue of female property rights in the landmark cases of Chituru Ukeje v. Gladys Ada Ukeje (2014) 9 NWLR (Pt. 1418) and Onyibor Anekwe & Anor v. Maria Nweke (2014) 9 NWLR (Pt. 1412), where it restated the rights of a widow without a male child to inherit from her husband.

 These customary law practices were held to be discriminatory, barbaric, and repugnant to natural justice, equity, and good conscience.

If a woman buys a property in the name of her husband, does it belong to him?According to the law, the person whose name is on the legal documents of a property, such as the deed of assignment, deed of conveyance, or deed of mortgage, is the legal owner of the property.

Related News  Conditions that will make court vacate its decision

Therefore, when a husband and wife acquire a property together, it is advisable that both their names be on the legal documents.

However, there is an exception to this general rule. When a woman buys a property in her husband’s name, it is not considered his property; rather, the husband holds the property in trust for his wife.

In the case of Jolugbo & Anor v. Aina & Anor (2016) LPELR- 40352 (CA) (Pp 27-29 paras A-D), the court stated that “The law also makes a distinction between the husband and wife – when a wife buys a property in the name of her husband, there is no presumption of advancement in favor of the husband; he holds it in trust for his wife.

However, if the husband purchases a property in his wife’s name, this is prima facie a gift to her. See Silver v Silver (1958) 1 All E.R. 523”.

Oluwambe Adefehinti Esq

The Nigerian Constitution upholds the right of citizens to own property within the country, enabling spouses to acquire property jointly or individually in their respective name.

Joint ownership may be pursued by a couple for various personal, religious, or cultural motives. In such arrangement, both spouses enjoy equal ownership of the property and possess the same undivided rights to retain or dispose them.

Additionally, they hold survivorship rights, entitling the surviving spouse to inherit the entire jointly owned property upon the other’s demise.

However, it’s essential to recognize that decisions regarding the property must be made jointly by both parties. Consequently, the husband cannot unilaterally dispose off or bequeath any jointly owned property, even following the dissolution of the marriage, without the consent of his wife.

In the case of Kobuwa & Anor V. Lamudu & Anor (1998) LPELR-6364 (CA), the issue of whether a joint landowner can transfer land title without the consent of the co-owner was raised.

The court ruled that “in situations where property is jointly owned by multiple individuals, each joint owner does not possess any portion of the property that they can independently dispose off until the property undergoes partition.”

A partner cannot however dispose off the property through a will without the consent of the other party or partner; even if the said relationship does not exist anymore.

Once the relationship ceases to exist, the ethical thing that is expected is that each party should agree on how the asset or property should be disposed off and both parties should share the proceeds equally. See the case of Oghoyone v. Oghoyone (2010) LPELR-4689 (CA) And Article 7 of the “Protocol to the Charter on Human and People’s Rights on the Rights of Women in Africa”.

Barr. Sebiotimo Joshua Esq.

Joint property ownership means a property bought in the name of two individuals who have decided to co-own a property. Jointly owned property is any property held in the name of two or more parties.

 These two parties could be business partners or another combination of people who have a reason to own property together. The matrimonial status of joint ownership of assets is when the two parties are husband and wife.

 In Nigeria, co-ownership of a property by two or more people is permitted in at least four different ways: joint tenancy, tenancy in common, tenancy by the entirety, and family ownership. Joint property vests power of consent to either party in the event the property is to be sold.

The husband can not in any case solely sell the joint property without the consent of the wife, such sale would be voidable and wouldn’t legally confer title on the purchaser of such property.

There are legal implications on the purchase, gift, or inheritance of joint property by two or more persons. These include;

In joint ownership of property, there is a unity of possession, title, and interest in the property. This simply means that the joint owners can enjoy the use of the property together at the same time. Hence, no party can lay claims of ownership of a part of the property to the exclusion of other parties.

In joint ownership of property, where one party dies, the property is survived by the remaining owners. The consequence of this is that the rights in the property cannot pass to the children or beneficiaries of the deceased party.

Before the rights in a joint property can be alienated to another, the consent of all joint owners must be obtained. Where consent is not obtained, the title passed to the purchaser becomes defective.

Ayonitemi Fasakin Esq

In Nigeria, the husband cannot dispose off a joint property without the consent of the wife. According to Nigerian law, both spouses have equal rights to the joint property, and any decision regarding the property should be made jointly by both parties.

If the husband sells or disposes off the joint property without the wife’s consent, it could lead to legal consequences. It is advisable for both spouses to reach an agreement before making any decisions about joint property.

Related News  Conditions that will make court vacate its decision

To protect the rights and interests of both parties involved. In Nigeria, the rights of spouses in marital property are often governed by various laws depending on the circumstances, such as whether the marriage is conducted under customary law or statutory law.

Under customary law, which is prevalent in many parts of Nigeria, marital property is often considered jointly owned by both spouses, and decisions regarding such property typically require the consent of both parties.

This means that neither spouse can unilaterally dispose off joint property without the other’s agreement.

In cases where the marriage is conducted under statutory law, such as marriages registered under the Marriage Act, the Matrimonial Causes Act, or other relevant legislation, the rights and obligations of spouses in relation to property may be governed by these specific laws.

Olubunmi Akinseye Esq

Whether a Husband can sell a joint property without the wife’s consent, is a question of Law and not moral. And no one is above the law(“nemo est supra leges”).

It is a settled Law that, “You can not give what you don’t have, as the legal maxim “nemo dat quod non habet” says it better, that you cannot transfer the Right that you don’t have.

That a husband is generally perceived as the head of the house does not translate to having a power to transfer title on behalf of the wife without a prior unrevoked consent or formal agency relationship.

The Nigerian Constitution too, forbids discrimination against the woman. If in any case for any reason, a husband ventured to sell a joint property while the woman is alive, without the wife’s consent the court is bound to reverse the sale on the ground that, the Proprietary Right of the husband does not foreclose the wife’s Proprietary Right.

In case the wife had prior notice of the sale but failed to stop the husband,she could be estopped from seeking notification of the sale, however, she should succeed in claiming her own share of the sales proceed.

In my opinion, it will be wrong for a husband to sell a joint Property without notifying and getting the wife’s unrevoked consent, or first seek and get the wife’s approval to act as agent over her portion of interest in the property, and conduct the sale transaction.

It will be against the wife’s constitutional right to own property. We must be mindful of the fact that, in business or company Law, the wife and the husband are considered as separate entities, different from their joint or separate businesses, even Partnership Law Principles will not allow the husband to sell joint property without the wife’s consent, as they are considered Partners rather than the oneness canvassed by the Marriage Act.

Ilemobayo Akinbote Esq

The property jointly acquired by a couple belongs to both the husband and the wife. This brings to mind the status of a joint property acquired in a statutory marriage. 

In a statutory marriage, whatever property acquired belongs to both the husband and the wife.

The issue of whether a husband can dispose of a property jointly acquired is a question of the kind of the marriage celebrated. 

In case of a customary marriage, what confers ownership of a propy on a spouse is whether there is an evidence to show that the property was jointly acquired, otherwise, whatever belongs to each of them, belongs to him or her exclusively. 

This position is however, different in the case of statutory marriage which is the marriage under the Matrimonial Causes Act. 

The position of the law is that whatever the husband acquires belongs to the wife and therefore has no liberty to dispose of same  unless the wife consents to the sale. 

It must be noted that, whatever is the case in statutory marriage, both the husband and the wife are regarded as one and inseparable. 

Usually, in a statutory marriage, the wife is always favoured in terms of the property acquired jointly during the pendency of the marriage. 

Unlike the customary marriage where the wife constitutes part of the property capable of being shared. What this means is that, just as other properties are acquired, the same way the wife is also acquired. 

The wife in customary marriage is not different from other properties acquired by the husband either moveable or immovable. 

The husband can dispose of any property acquired jointly even without the consent of the wife in a a customary marriage except there is an evidence that the property was jointly acquired. Otherwise, the buyer will be buying a court case. 

The husband in a customary marriage is the Alfa and Omega, his decisions are unquestionable and may not be subject to influence at all

 He decides the property to buy and the one to sell. He cannot be question.

Worst of it all is the fact that even the bride price paid by the husband must be returned during dissolution of the marriage.

Share
Can husband dispose joint property without wife’s consent?

Osun NSCDC, Correctional Centre strengthen ties to

Can husband dispose joint property without wife’s consent?

Right to dignity of human person

Leave a comment

Your email address will not be published. Required fields are marked *