FAMILY LAW 2.4 SETTLEMENT OF PROPERTY (ANCILLARY RELIEF 4)
Property in this context can be seen as anything of value owned by either or both of the spouses at the date of their separation. Unlike division of property, settlement of property is an equitable intervention of the court.
As noted earlier, (by virtue of Section 69 and 72(3) Matrimonial Causes Act) settlement of property shall ONLY apply to parties and children of a statutory marriage-Smee V Smee.
Parties can enter an agreement as to settlement. The court would enforce such agreement where it is equitable and NOT obtained by fraud, duress or misrepresentation.
SETTLEMENT UNDER CUSTOMARY LAW.
In most customs, the husband’s responsibility to take care of his wife terminates upon divorce or death and there is no question of settlement. Upon divorce, the woman may take her personal belongings and leave. In Oloko v. Giwa, it was held that even where a woman is allotted a room/area in a compound. She has to vacate it upon divorce. This is because divorce usually severs all ties a woman has with the husband and his community.
Paradoxically, in England, the Matrimonial Homes Act, 1983 provides that the husband may even be asked to leave his matrimonial home upon divorce for the protection of his wife and children.
SETTLEMENT UNDER ISLAMIC LAW.
A pious husband is required to give the wife something (maybe a gift) as maintenance or settlement upon divorce.
SETTLEMENT OF PROPERTY UNDER THE MATRIMONIAL CAUSES ACT
Section 72 of the Matrimonial Causes Act, provides;
The court may, in proceedings under this Act, by court in 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.
In Smee v. Smee, the court observed that the material question from the Section is one of justice and equity. Same was noted in Watchel V Watchel. This was demonstrated in Kafi V kafi where the husband asserted that the wife did not contribute anything to the property and is not entitled to settle property. Omo JCA, (as he was then) held that the only limitation imposed by this Section 72 is equity, justice and the best interest of the parties and children.
From the above, it is apparent that Section 72 is a very desirable means of escaping the side effects of a divorce. Regrettably, it does not apply to spouses of Customary and Islamic Marriages. Even though it applies to spouses of Statutory Marriages, in Nigeria, spouses of statutory marriages underutilize this provision.
In Sotomi V Sotomi, the husband owned choice and real properties around… the wife did not specifically plead Section 72… thus the court could not grant a relief that was not claimed-Kafi V Kafi.
The Uniform Marriage and Divorce Act (UMDA) of the United States of America provides that the court should take regard of the duration of the marriage, and the contributions of each spouse to the marriage. Section 72 should be amended to provide such guidelines. This would maintain the sanctity of marriage and prevent people from using divorce as an opportunity to get rich.
In essence, from our scenario at the beginning of this note, Titi can claim that her husband is a big man into “Oyel an Gas” and has choice properties here and there. Meaning that over the years, as his wife, she has become a “thick madam”. That the court should “kindly give her some of the properties now that they are divorcing” then the court would consider whether it is just and equitable to grant her request.