One of the issues that attracted vast and varied opinions on social media recently was whether a wife whose name was not included in title deed of a land should contribute to the building of a “family house” or any property at all, by whatever name called, on the land.

Some of the commenters were of the opinion that a woman should never contribute to the building if her name is not on the title documents. On a cursory look, this may seem to be a smart decision.

However, on a thorough consideration, is this really a wise option considering the position of Nigerian law on division of marital property in the event of dissolution of the marriage – a divorce ?

I surmise that this may not always be the smartest way to approach the issue.

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Under Customary law marriage the above referenced opinion of some commenters may be quite sound. This is because, under this system of laws when the man acquires a property, he has sole interest or right over the property.

When a marriage under the customary law is facing possible dissolution, the woman has no right to claim for settlement of property even if she contributed to the acquisition of such property. She cannot through a court order compel her husband share the property with her.

However, 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.

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Contrastingly, where the couple contracted a statutory marriage (i.e. marriage under the Marriage Act), either of the parties can apply to the court during filing of the divorce proceedings for the settlement of properties. The legal framework for settlement of property in divorce proceedings is contained in Section 72 of the Matrimonial Causes Act.

Now to the rationale for my earlier suggestion that refusing to contribute to the building may not always be a very smart decision.

Section 72 (1) of the Matrimonial Causes Act 1970 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’.

In statutory marriage, one of the ways in which the court will determine justice and fairness is to consider whether the party asking for property to be settled on him or her, has established that s/he contributed in concrete terms to the acquisition of the property.

It is settled law that a person who claims to be the joint owner of a property must be able to quantify his/her contribution. S/he must give detailed particulars and support them where necessary with receipts of what he bought towards the building of the property

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. Contribution will determine the extent of the interest the court can grant in favour of the other party.

Contribution to property can be inferred. See the case of ESSIEN vs. ESSIEN (2009) 9 NWLR (Pt. 1146) 306, 331-332, where the Court of Appeal restated the decision of the Supreme Court in ADAKU AMADI vs. EDWARD NWOSU (1992) 6 SCNJ 59. The court accordingly refused the claimant’s case on the basis that she did not prove contribution.

But see also the case of DANIEL EHOHAN OGHOYONE V. PATIENCE ADESUA OGHOYONE (2010)LCN/3530(CA) where the Court of Appeal  held that the respondent was entitled to joint interest because both parties contributed to the property.

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From the foregoing, it will be seen that while contribution may not make any difference in dissolution of a customary marriage, evidence of such contribution may just be what you need to be on the advantaged side where the marriage in reference is a statutory marriage.

My suggestion therefore  is that where you had such a marriage, it is in your enlightened interest to contribute nonetheless. However, where you contribute to such property, you may wish to keep receipts and other evidence that may come handy in any event.

© JIMMY ABIA, ESQ.

17/03/2021