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31 Dec

FAMILY LAW 2.5 DIVISION OF PROPERTY (ANCILLARY RELIEF 5)

DIVISION OF PROPERTY.

ONLY “marital property” can be divided/shared. Unlike in settlement where any can. Marital property is property acquired by either or both of the spouses during their marriage. In Kowalezuk V Kowalezuk, the court held that despite the fact that the wife contributed to the maintenance of the house, it could not be divided because the husband acquired the house 2 years before the marriage.

:: The issue of division of property arises where one spouse claims a right or beneficial interest in a property which may be vested in the other spouse.

In practice, the husbands are usually at an advantage because they acquire property (especially real) in their name and the wife sees no reason to complain or insist that the property be acquired in her name even when she contributed to the payment used in acquiring the house.

:: Division of property disputes is NOT governed by our Matrimonial Act-Okocha V Okocha but by Section 17 of the Married Women’s Property Act of 1882.

:: The court usually use the doctrine of trust and trustee in such situations. Lord Reid in Gissing V Gissing, that a person who alleges beneficial interest in a property which is legally vested in another can assert on the premise that the legal owner is holding the property as a trustee. The circumstance of the case may then impose on the husband, implied or constructive trust. In this case; (Gissing V Gissing), the husband bought and paid for a matrimonial home. The wife paid for some furniture and the cost of £220 for laying the lawn. The court held that she was not entitled to any beneficial interest in the house. Lord Diplock held that for a husband who owns a property to be seen as a trustee for his wife in relation to a property, the contributions she asserts that she made must be substantial and referable to the acquisition of the property in question. Lord Reid added that; if her payments are direct, she gets a proportion of what she put, if they are indirect, she gets a fair estimate.

In Egunjobi V Egunjobi, where the wife asserted that she made contributions to the development and building of the house although it was bought in the husband’s name (i.e. legally vested in her husband). The court cited with approval, the statement of Lord Reid in Gissing V Gissing (stated above). Held that because the woman made direct contributions referring the development of the property in question, the husband therefore held the property in trust for himself and the wife.

The courts in recent times have departed from (or introduced some elasticity to) the requirement of substantial and direct contribution postulated in Gissing V Gissing.

Fakayode J.C.A in Egunjobi V Egunjobi noted that where a woman foregoes housekeeping allowances to enable her husband save and acquire a property, she should be entitled to some beneficial interest in the property though the contributions were indirect. Similarly, in Hazell V Hazell, Lord Denning, stated that where the wife’s contribution was able to help the husband save money or relieve him of expenditure which he would otherwise have incurred, she should have some beneficial interest in the property.

Section 144 of the Tanzanian Law of Marriage Act 1971 (which harmonises spouses of statutory, customary and Islamic marriages) advocates impartiality in determining division. Considering the contributions of the parties, custom and need of the children.

Some theories which underlie division of property include:“source of funds theory”, “transmutation theory” and the “inception of title theory”. The first two are equitable while the latter (the inception of title) theory posits that the person who has title over the property is the owner (For example when his name appears on the documents or receipt). This theory has been criticised for being too harsh.

There is a new improvement of awarding what is called “rehabilitative, reimbursement or permanent alimony” (or both) to a spouse who has helped the other spouse to improve his/herself professionally or otherwise.

In Mahoney V Mahoney reimbursement alimony was awarded where the wife had supported and ran the home while the husband took a Master’s Degree. Similar facts and conclusion occurred in Lynn V Lynn.

In The Marriage of Lundberg, the wife (a school teacher) supported her husband through medical school. They divorced after he got his degree and qualification. The court held that she was entitled to compensation for her contributions. Similar facts and conclusion in O’Brien V O’Brien, where the court held that the wife was entitled to 40% of his degree’s distributive asset. In Oluwa V Oluwa, the court awarded the wife a lump sum of N3000 for what she had put into the marriage and for supporting her husband while he was studying. In Okala V Okala, the wife was also awarded a lump sum for what she put into the marriage.

Where nothing has been contributed, nothing shall be awarded. In Ibeabuchi V Ibeabuchi, the court refused to grant the wife anything in relation to the husband’s academic qualification because she had contributed nothing.

Look at this pretty long amateur scenario/drama: Two young graduates Tobi and Aisha are into each other.

Tobi: Aisha, I really love you. We have to get married.

Aisha:  I know you love me but you don’t have a house or a car yet. I don’t want to marry and continue struggling na.

Tobi: don’t worry we’d work things out. (They Get Married and 5 years later, Tobi is earning #10 million a month and Aisha earns #1 million a month).

Tobi: Aisha, we need to get a real place we can call our home. I have bought a land at Ikota for 20 million and to build the house and everything I would need to #64 million. I have 54 million. Please do you have anything to top up to this so we can start.

Aisha: No problem. I would top up the 10 million naira.

(The house is built and completed and all the documents bear Mr Tobi Olanipekun as the owner).

If they fight and Tobi asks her to “pack her things and leave” and eventually there is a divorce proceeding, Aisha can claim that the house belongs to both of them and she wants the court to declare that it is held in trust by Tobi (whose name appears on the ownership documents) in their joint behalf. This one is division of property. But if she had not contributed anything, she may petition/plead that the court should look through Tobi’s Assets and give her something to go with. If Tobi has other houses, she may even beg for the court to equitably consider giving her the matrimonial home so that she does not end up homeless. This plea is through settlement of property. Hope this clarifies things a bit.

In conclusion, the law relating to the division of property in Nigeria is ambiguous and problematic as regards the calculation and quantification of the contributions made. Legislative intervention is crucial. Nwogugu has advocated for the fusion of Nigeria’s pluralistic marriage system in his article, What Next in Nigerian Family Law? This feat has been accomplished by Tanzania in their Law of Marriage Act 1971. Nigeria should follow suit.

 

 

 

Isochukwu

Quite eccentric really

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