Introduction
During dissolution of marriage suits in Nigeria, there are usually a number of contentious issues ranging from custody of children, maintenance and settlement of property. Strangely, in most of these cases, parties (Petitioner and Respondent) barely contest the relief of dissolving the marriage. Although, parties contest the facts but at the end of it, the Respondent often wants to opt out of the marriage also but probably based on different facts. This piece will address one of the contentious issues in dissolution of marriage which is settlement of property. Simply, it is how property is shared during divorce. In other words, settlement of property is a judgment in a divorce case determining the distribution of the marital property between the divorcing parties.
What is marital property?
Property bought or built during the pendency of the marriage. This could also mean a parcel of land purchased before marriage but same was developed during the pendency of the marriage.
How is property shared during divorce in Nigeria?
By virtue of section 72 of the Matrimonial Causes Act, the State High Court (could be the family division of a high court) is granted power to adjudicate or preside over the issue of settlement of property in divorce proceedings. There are several factors a court would take into consideration as to whether a property should be subject to settlement or not. However, these considerations are based on facts of each case. Section 72 of the Matrimonial Causes Act which is the foundation for settlement of property states: “(1) 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 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. (2) The Court may in proceedings under this Act, make such order as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of the marriage of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them.” In considering the provision of the law, below are the factors the court will consider:
- When was the property purchased? If the property in question was purchased during the pendency of the marriage, it could be subject to settlement of property. See the cases of SANDERS V. SANDERS (1967) 116 CLR 366; OGUNNUBI VS OGUNNUBI (2021) LPELR (53497).
- Contribution of parties in the acquisition of the property or completion of same or to the growth of family: This will be addressed in different folds: Where a spouse contributed to the purchase of the property – The property would be subject to settlement. Where a spouse had purchased the land before marriage but the land was developed during the pendency of marriage- Such property could be subject to settlement. Where a spouse was developing a property while the other person focused on caring for the children or home – such property could be subject to dissolution of property. For example, during the course of acquiring the property by the man, the woman may have focused on solely contributing to the feeding and clothing of the family during that period.
The grant of joint ownership of property is not automatic. There must have been evidence adduced to the contribution made by the party praying for joint ownership.
3. What is just, fair and equitable to do in the circumstances in settling the property: settlement of property is not an element of alleged punishment or deprivation of a party. The prime consideration is whether it is just and equitable in the circumstance of the case before the court.
4. Interest of the children: The interest of the children is often paramount because shelter is a necessity for every human. This position was recently affirmed in a case I handled before the Family Court of Oyo State where the court upheld my argument that the matrimonial property in contention should be settled in favour of the children. I further commend the case of SUNMONU V. SUNMONU 2021 LPELR-56002 CA. However, the interest of a child who has attained the age of twenty-one years will not be considered save for in special circumstances such as mental disability of the child etc. 5. Whether the spouse has another property of his/her own. Sometimes the party may pray the court that the property should not only be declared as jointly owned by parties but that the property should be sold and proceeds should be equally shared by parties or that the property should be demarcated. The aforementioned factors will also be considered in that instance.
What if the property is only in one person’s name? The fact that the property is in the name of one of the parties will not invalidate the claim for joint ownership. What will be considered is the oral or documentary evidence before the court. Party A may own the assets while party B may have contributed indirectly by raising the kids and or supporting spouse business during the period of acquiring the assets.
In conclusion, the issue of settlement of property is purely at the discretion of the court. However, like in all matters of exercise of discretion, it must be exercised judicially and judiciously based on the circumstances of a particular case. See BELLO V. YAKUBU (2008) 14 NWLR (PT. 1106) 104. In the exercise of its discretion, the Court must do what is fair and just, regard being had to the facts and evidence adduced in each case. The Court must not depend on sentiment, tantrum or one sided argument.
Sources
Black’s Law Dictionary, 10th Edition
Matrimonial Causes Act