The Nigerian system recognizes three types of marriages, which are statutory marriage; customary marriage; and Islamic marriage. Under the customary and Islamic marriages, the right to a woman to acquire and own property was subject to the consent and control of their husbands, as women are often regarded as subordinates to their husbands and as such not entitled to rights of any family property upon divorce. Upon dissolution of the marriage, she is often disposed of any properties or benefits. However, in a statutory marriage, there are benefits enjoyed by women married under the Marriage Act as they have rights in matters of divorce rights to property or inheritance. In proceedings for the dissolution of a legal marriage, the court exercises its discretion to ensure that family properties are divided equitably and fairly.

The Marriage Act 1990 and other legislation which will be outlined below, gives a wife married under the statutory law the rights to acquire, hold or dispose of and have shares in a family property in the event of divorce.

There are several laws and judicial precedents that support and guarantee the right of a legal wife to acquire family properties and inheritance in the event of a divorce in Nigeria. The major laws that protect the right of women to own properties in Nigeria are the 1999 Constitution of Nigeria (as amended), which abolished any form of discrimination against women and the Matrimonial Causes Act, which mandates the settlement of property in favour of women in deserving circumstances

In determining the rights of a legal wife in divorce proceedings, the court treats family properties owned by spouses as separate and it adopts a strict approach in determining the proprietary rights of a wife.  The court has the power to order the settlement of property for the benefit of parties to the divorce or children of the marriage using the equitable approach to ensure that the property is shared equitably and fairly. As by Section 25 of the Matrimonial Causes Act, on the application of the Respondent made in course of divorce proceedings, the court may if it considers it just and proper in the circumstances of the case, makes provisions for the maintenance or benefit of the respondent.

Section 72 of the Act goes further to provide that “the court in divorce proceedings may require parties to the marriage, or either of them to make for the benefit of all or any of the parties and the children to 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 may consider just and equitable in the circumstances of the case”.

In exercising its powers, the court may order that any necessary deed or instrument be executed and that the documents of title be produced or such other thing be done as necessary to enable an order to be carried out effectively or provide security for the performance of the order.

In the settlement of property during divorce proceedings, the financial contribution of the parties to the property is often the approach adopted by the court to determine the extent of rights to be granted in favour of the wife. The Nigerian courts often rely on documentary evidence as proof of the existence of joint ownership of property or financial contribution towards the acquisition of the property or development of the property before the claims to the right of property can succeed, especially where the legal title to the property is in the name of the husband.

This strict approach was applied in the case of ESSIEN vs. ESSIEN (2009) 9 NWLR (Pt.1146) 306, 331-332 where the court insisted that direct financial contribution to the purchase of a matrimonial home or the repayment of the mortgage be proved before the joint property is inferred. The property in dispute was in the sole name of the respondent-husband. The appellant’s- wife petition for dissolution ran concurrently with the respondent’s suit. The divorce petition concluded earlier than that of the husband and it was declared that the parties were joint owners of the disputed property. The wife sought to introduce the judgement in her husband’s suit. She argued that her husband collected her salary as part of her contribution to the building and her father provided lodging for the parties whenever they were in the town where the building was located.

The trial court discounted the divorce judgment and held that the respondent was the sole owner of the property. The Court of Appeal also upheld the decision of the trial court and stated that the requirement for joint ownership can only be inferred where there is a direct financial contribution to the purchase price of the matrimonial home or the repayment of mortgage instalments. The same principle of law was approved by the court in the case of ADAKU AMADI vs. EDWARD NWOSU (1992) 6 SCNJ 59.

However, flowing from the above-cited provision of the law, the court is required to adopt a just and equitable approach in determining the rights of a legal wife to family properties, whether or not there was a financial contribution to the purchase of the property, depending on the circumstances of the case brought before it, especially where it will result to an unfair result on a legal wife without title to the family property.

In deciding an equitable distribution in the settlement of family property in divorce proceedings, the courts have to exercise their discretionary powers depending on the facts of the case, and also consider the following;

  • The time the property was acquired (it must have been acquired during the subsistence of the marriage or payment for it must have been concluded during the marriage).
  • Whether the property was acquired jointly.
  • The income and property of each spouse at the time of the marriage.
  • The contribution of the parties to the family property.
  • The conduct of parties to the divorce proceedings;
  • The age and position of the children.

The court also in some instances can order a lump sum of money to be paid to the wife rather than a settlement of property to her. This was what happened in the case of SODIPE vs. SODIPE (1990) 5 WRN 98 where there was no evidence of a direct financial direction, the court however valued the matrimonial property to be worth N10 Million Naira and ordered the payment of N200,000 to the wife who had spent 43 years in the marriage.

In the case of MR. ALEXANDER IBEABUCHI vs. MRS. NNEKA IBEABUCHI (2016) LPELR- 41268, the trial court awarded the property at No.48, Sarki Yaki, Nomaonds Land Kano to the Respondent(wife) even where there was no evidence of contribution to the property, as it was just and equitable to do so. The court in reaching its decision relied on the provisions of Section 72 of the Matrimonial Causes Act, that settlement of property is based on what is just and equitable in the circumstance of the case. The court further held that in determining the rights of parties on what is just and equitable, the court has a wide discretionary power to exercise, and it is immaterial that another judge would have done it differently or would have considered a different arrangement to be just and equitable.

In OKERE vs. AKALUKA (2014) LPELR -24287 (CA) 1, 60-61 the court held that it would be unconscionable to deprive a woman and her children of the right in a property to which she contributed substantially regarding its acquisition and development. The court was also of the view that the indirect contribution of wives to the matrimonial property should grant them a beneficial entitlement to the property on the basis that it was the performance of their functions as wives that enabled their husbands to perform theirs.

Finally, the Constitution of the Federal Republic of Nigeria 1999 (as amended) which is the supreme legislation in Nigeria is built on the principle of equality and justice and guarantees the rights of any person to acquire properties in Nigeria as Section 42 provides that “every citizen, whether male or female has the right not to be discriminated against on the grounds of gender or religion amongst other things….”.

Furthermore, several laws in Nigeria, especially the Administration of Estate Law of each state has granted women the right to inherit the husband that dies without a will (intestacy). Under the Administration of Estate Law of Lagos, the legal wife is the first in line to inherit the property of a husband who died without a valid will.

By Winifred Idiaru, Associate at Resolution Law Firm