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Sunday, August 1, 2021

Divorce and right of inheritance

By Solomon Runsewe  & Damilola Akinmolayan

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Sharing of property after divorce in Nigeria also regarded as settlement of property is the transfer of property of a party that may be jointly owned to the other spouse. Under the customary law, both the man and the woman can acquire property either before or during the marriage. Does the wife have any rights in her divorced husband’s property even after death? The Hope Classics spoke with some experts. Excerpts:

 

Firstly during the marriage, were the couples operating a joint account and do they maintain joint properties? If yes, it is divided according to the proportion of interest of the parties. There’s what is called advancement.
If a husband bought a property in his wife’s name, it is assumed he intends to give it to the wife as a gift and he cannot lay claim to it again.
However, if a wife bought a property in her husband’s name and they divorce, the man cannot claim the property as presumption of advancement is not in favour of the husband.
Then for the issue of kids, then the question of custody comes first.
And the law will consider the overriding interest of the children before custody is awarded.
Another issue is that if a woman divorced her husband before he died, does the woman have right to share among his property?
The answer is no, except there is a Will that gives her part of the property.

 

 

In Nigeria, marriage is hardly conceived as a partnership of equals in relation to the property rights of spouses during marriage and at divorce. This is because the Nigerian courts do not redistribute property at divorce. This leaves the financially weaker spouse (usually the wife) at an economically disadvantaged position. This article therefore compares the position of the matrimonial laws in England with that of Nigeria, whether there are provisions for the redistribution of property between the spouses at divorce.
The comparative analysis reveals that family laws in England empower the family court to redistribute property amongst spouses at divorce. On the contrary, the matrimonial property laws in Nigeria provide for the settlement of property at divorce. The analysis also reveals that the courts in Nigeria adopt the strict property rights approach in ordering the settlement of property, which is detrimental to the wife. The article also makes a case for a redistribution through the economic analysis of the worth of a housewife. The authors therefore argue that the Nigerian courts should depart from this approach and borrow from the English courts. The authors recommend the amendment of the matrimonial property laws to fill this gap. That would enable the Nigerian courts to make a redistribution order, so as to vary the recognized property rights of spouses in order to provide compensation for any reasonable loss caused by marriage and ensure that the financial benefits of marriage are shared on a just and equitable basis.

 

 

The right of a woman to inheritance in Nigeria depends on many factors ranging from law, culture, tradition, the status of the deceased parents and the good mindedness of other family members. In Nigeria, where a person who died intestate was not subject to customary law and contracted a valid marriage under the Marriages Act during his lifetime, the intestacy rules will be applied to administer and distribute his property to the heirs or beneficiaries notwithstanding whether they are male or female.
Similarly, an intestate deceased who never contracted a statutory marriage under the Act shall have his estate distributed in accordance to the personal law applicable to him before death. Thus, the customary laws on distribution of a deceased’s property are protected to a certain extent and would not be displaced where the deceased was subject to customary law and where customary laws governs succession of a property. Upon contracting a statutorily valid marriage under the Marriage Act, a deceased estate is not governed by the intestacy rules of customary Laws.
Except where the deceased father or husband left a will behind, traditionally, female children and widows rights to inherit their father/ husband’s property under the customary law in most tribes in Nigeria are culturally limited. Generally speaking, in the average inheritance system of Nigerian communities, female children or widows are usually excluded or limited to inherit their father/ husband’s property. However, this tradition has been somehow amended by the court of justice by legislative repudiation of cultures termed as harmful practices.
In most Igbo traditional societies, available literatures postulate that female child and widows do not exercise rights of inheritance over their father/ husband’s property except in some special situation where they could benefit from the estate or property left behind by the deceased. Such gestures are normally extended to them by their father/ husband out of his personal consideration while he is alive. Even at that, such gesture cannot include any portion of land within his ancestral home. The right to succession of the entire estate belongs exclusively to the first or eldest son of a deceased person. This first or eldest son in turn acts as Trustee for the other children.
In Yoruba land, whether a widow can absolutely inherit the intestate estate of her husband will depend on customary law of his locality. Most problems arise when the deceased married more than one wife. Before the emancipation of African woman, the generally judicial position is that in Yoruba land, widows do not inherit their deceased husband’s property. They are only allowed to remain in the house or a portion of farm land. That was one of the decisions of the Court in Oloko v. Giwa (1939) 15. NLR. 31. The implication of this (then) was that the widows have only possessory rights and not exclusive rights over their deceased husband’s property. It was the opinion of the court that inheritance follows blood. Since a widow is not a blood relation of her husband, she has no claim to any of the property.
However, the society is now changing so is the law. The popular belief now is that female children are not inferior to their male counterpart nor are they second class citizens. The law is fast changing now along this line of reason that female child is as important as male child. In fact, it is safe to say that the law has changed in this regard. Now, the Supreme Court of Nigeria has ruled (in an appeal in SC.224/2004 filed by Mrs. Lois Chituru Ukeje v. Ms. Gladys Ada Ukeje (the deceased’s daughter) that the tradition whereby a woman or a female child is excluded from inheritance is a practice that violates the provisions of section 42(1)(a) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended). In the final analysis, being a woman or a female child is no more a factor in determining the right to inheritance in an estate.

 

 

Sharing of property after divorce in Nigeria also regarded as settlement of property is the transfer of property of a party that may be jointly owned to the other spouse. This usually comes as an ancillary relief granted during divorce proceedings. Settlement of property must be contained in a divorce petition or answer and should not be an afterthought.
The power of the court to share the properties for the benefit of either of the spouse is contained in Section 72 (1) of the Matrimonial Causes Act 1970 which provides as follows; “in proceedings under this decree, by order require the parties to the marriage, or either of them to make for the benefit of all or any of the parties to and the children of the marriage such settlement of property to which the parties: or either of them is entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the cases”
This legislation obviously empowers the judge who hears the divorce petition, to decide how property owned by the parties or either one of the parties is to be shared. This discretion must however be exercised in a way that is ‘just and equitable’.
Due to the plurality of Nigeria Legal System, there are different legal principles guiding settlement of properties under different forms of marriage i.e. under the customary law and under statutory provision (marriage under the act.)
Under the customary law, both the man and the woman can acquire property either before or during the marriage. The woman is not barred from holding or acquiring her own property. Also when the man acquires a property, he has sole interest or right over the property. When a marriage under the customary law is been dissolved, the woman has no right to claim for settlement of property even if she contributes to the acquisition of such property. She cannot through a court order compel her husband share the property with her.
However under the statutory marriage (marriage under the Act) either of the parties can apply to the court alongside with the divorce petition for the settlement of properties. The legal framework for settlement of property is contained in Section 72 of the Matrimonial Causes Act as mentioned earlier. The property to be settled must belong to either of the parties to the marriage. The court cannot share a property that belongs to neither of the parties. The property can either be real or personal property.
Under the statutory marriage, one of the ways in which the court assesses justice and fairness is when the party asking for property to be settled on him/her, shows or establish that he/she has contributed in concrete terms to the acquisition of the property. 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 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 the children by virtue of Section 72 (30 of the Matrimonial Causes Act 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”
Whenever a spouse says he/she contributed to the acquisition of a property or construction of a building, this must be proved before the court can grant the order for the property to be shared. In ONABOLU v. ONABOLU (2005) 2 SMC 135 the wife/petitioner claimed among other, against her husband that their joint matrimonial property be shared equally between them or sold and the proceeds of sale shared equally. The court having carefully examined all the pieces of evidence given by the wife/petitioner and the husband/respondent on issue of joint ownership of the property found that the evidence of the husband/respondent positively established that he bought the land over which the property was built. The Court of Appeal held to this effect:
“It is settled law that a person who claim to be the joint owner of a property must be able to quantify his contribution. He must give detailed particulars and support them where necessary with receipts of what he bought towards the building of the property…..”
The court in determining the extent of the property to be settled, it would consider the circumstances of the case including the fortune of the parties and their responsibility.
In sharing of property, the court is usually guided by what is just and equitable. As such the court has a wide discretionary power to share properties as just and equitable. In exercising this discretionary power, Lord Denning in COOPER v. COOPER held that the court should act judiciously.
The children produced by a marriage are also members of the family. The family property maybe settled in favour of children in some circumstances.
The court will consider sharing of property for the benefit of any child below 21 years of age except in special circumstances where it is justifiable to settle the property for his or her interest even at the age above 21 years– Section 72 (3) Matrimonial Causes Act.
In conclusion, the application of the law on sharing of property as contained in Section 72 and 73 of the Matrimonial Causes Act is only applicable to marriages under the Marriage Act and not the marriages under the Customary Law. The presiding judge has a wider discretion to share the properties of couple upon dissolution of marriage in a manner that is just and equitable. Therefore, the court must exercise its discretion judiciously when called upon to share the properties during a divorce proceeding.

 

 

Olorunmegan Oladele, Esq

Nigeria needs a new law which would integrate the existing different systems of marriage and, particularly divorce.
The customary, Islamic and statutory divorce laws, all of them based on diverse traditions, are largely incompatible with each other and in the present condition, satisfactory solutions for the emerging conflicts cannot be found.
Although it may seem to be an impossible task to reconcile the present contrasting systems of marriage and divorce, one can attain an integration by retaining essentials of the current laws if otherwise a compromise between them is accepted. The Nigeria Law of Marriage Act provides numerous good solutions, but not all of them should be adopted since this law, enacted some 25 years ago, contains several outdated ideas which should not be taken over.
Therefore, the following (outlined) recommendations may be adopted in a future Nigerian divorce law:
1. If serious marital discord arises the spouses should have the opportunity to attempt reconciliation with the assistance of a Marriage Reconciliatory Board.
2. If reconciliation fails, it is evident that the marriage has broken down and the court should pronounce the divorce by decree.
The establishment of specific matters as evidence or indication for the marriage breakdown is not required. Only the court has the power to dissolve a marriage; a non-judicial divorce is null and void without exception.
3. In the divorce decree the court should order the spouse who is more capable of gaining his/her livelihood after divorce to pay maintenance to the other spouse who is in greater need.
Here further discussion will have to find an answer to a complicated problem: the division of property between the parties and its effects on the maintenance rules.
A law of divorce which requires irretrievable breakdown as the only ground for dissolving the marriage, without any obligation to prove a specific reason, but with the emphasis on the prevention of a divorce merely through an informal reconciliation procedure, makes divorce in fact rather easy. Divorce proceedings should be kept short particularly when children are involved.
The court shall take into consideration reasonable arrangements as to maintenance and custody of children upon which the parties might have agreed during the reconciliation procedure.
A modern divorce law should not enforce traditional prerequisites of a customary dissolution such as the refund of the marriage consideration or the repayments in connection with an Islamic khul’. The parties are free to follow these traditions, but the divorce should be valid irrespective of whether the wife’s family refuses to return the bride-price or the husband declines to accept the repayments.
Otherwise the wife would have only very limited chances to obtain a divorce. This view also departs from the concept of Islamic law where the wife can obtain a divorce in consideration of a money payment which normally amounts to the dower {khul’divorce). But in the light of Maliki law, this deviation is not so grave: if the husband does not accept a khul’, the courts already pronounce the divorce (a talaq) on behalf of the husband, and it depends on the reasons in each specific divorce whether the wife has to refund the marriage payments.
Finally, it must be stressed again that divorce would only be obtained by a court decree; a dissolution effected otherwise than by a court would be void.

 

 

Settlement of property is the transfer of property of a party or jointly owned to the other spouse. It confers the title over a property from one person to another. It is an ancillary relief granted during divorce proceeding. It must be contained in the divorce petition or answer and not an afterthought.
Due to the plurality of the Nigeria legal system, there are different legal principles guiding settlement of marriage under the different forms of marriage, that is marriage under customary law and under statutory provision (that is marriage under the marriage Act).
Under customary law, both the man and the woman can acquire property either before or during the marriage. The woman is not barred from holding or acquiring her own property. Also when the man acquires a property, he has sole interest or right over the property. When a marriage under customary law is been dissolved, the woman has no right to claim for settlement of property even if she contribute to the acquisition of such property. She cannot through a court order compel her husband to settle the property to her.
However under the statutory marriage (that is marriage under the marriage Act) either of the parties can apply to the court alongside the divorce petition for the settlement of the property. The legal framework for settlement of property is the Section 72 of the Matrimonial Causes Act. It provides that is any matrimonial proceeding, the court can require both or either of the parties to settle the property owned by both of either by either possession or reversion which the court consider just and equitable for the benefit of the parties and the children of the marriage.
The court in SMEE V. SMEE gave the objective of the law as part of a general purpose of providing for the settlement and adjustment of all matters arising out of the martial relationship at one time and in one proceeding.
The property to be settled must belong to either one of the parties to the marriage. The court cannot settle a property that belongs to neither of the parties as seen in WATCHEL V. WATCHEL. The property can be either real or personal property. In ANDERSON V. ANDERSON, the court held that the partnership solely owned jointly by both parties can be settled. The court in determining the extent of the property to be settled, the court would consider the circumstance of the cases including the fortune of the parties and their responsibility.

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