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Published online by Cambridge University Press: 11 April 2019
This article demonstrates how the application of the ordinary rules of property law in the determination of the property rights of spouses in Nigeria has been unfair to a financially weaker spouse (usually the wife). It calls for reconsideration of the present matrimonial property rights arrangement between a husband and a wife in Nigeria. It argues in favour of the statutory introduction of the concept of “matrimonial property” in Nigeria to apply both during marriage and at divorce. To give some background, reference is made to the South African matrimonial property system of community of property and the accrual system. The article proposes that a special category of property, known as “matrimonial property” and which emphasizes the equal proprietary rights of spouses, is recognized.
We regret to announce that Dr Efe passed away in December 2018. In publishing this article posthumously, we are grateful to Rachel Wright for her assistance in editing and checking the proofs on his behalf.
LLB (Hons), BL (Hons), LLM (Delta), LLD (Pretoria). Department of Private Law, Faculty of Law, University of Pretoria, South Africa; barrister and solicitor of the Supreme Court of Nigeria. The author acknowledges the assistance received from his supervisor, LN van Schalkwyk (professor of private law, University of Pretoria, South Africa), on the initial draft of this article. He also acknowledges the full-time funding received as a doctoral research student from the Faculty of Law, University of Pretoria, South Africa.
1 Miller v Miller and McFarlane v McFarlane [2006] 2 AC 618 (HL), para 16.
2 Id, para 146.
3 Id, para 16.
4 See id, para 22.
5 Umukoro, BE “Settlement of matrimonial property upon divorce: Challenges and need for reform in Nigeria and some other Commonwealth countries in Africa” (2006) 1/1 Commercial and Property Law Journal 116 at 117Google Scholar.
6 Ashiru, MOA “Gender discrimination in the division of property on divorce in Nigeria” (2007) 51/2 Journal of African Law 316 at 320–21CrossRefGoogle Scholar; Edu, OK “Women and property rights under customary law” in Oho, FO and Edu, OK (ed) Women, Law & Family (2016, Art Masters) 136 at 145Google Scholar.
7 1914 cap M6 Laws of the Federation of Nigeria, 2004.
8 No 18 of 1970 cap M7 Laws of the Federation of Nigeria, 2004.
9 1882 (45 and 46 Vict cap 75).
10 These states include Edo, Lagos, Ogun, Ondo, Osun and Oyo.
11 Umukoro “Settlement of matrimonial property”, above at note 5 at 118.
12 Onokah, MC Family Law (2003, Spectrum Books Limited) at 269Google Scholar.
13 Received English Law is one of the sources of Nigerian law. It comprises English common law principles, the doctrine of equity and the statutes of general application that were enacted in England and were in force before 1 January 1900. See Sanni, AO Introduction to Nigerian Legal Method (1999, Kuntel Publishing House) at 126Google Scholar.
14 Ibid.
15 Park, A The Sources of Nigerian Law (1963, African Universities Press) at 24–36Google Scholar.
16 Nwogugu, EI Family Law in Nigeria (rev 2nd ed, 1990, HEBN Publishers) at 85Google Scholar states that this law re-enacted part of the provisions of the MWPA and the Law Reform (Married Women and Tortfeasors) Act, 1935 (25 and 26 Geo 5 cap 30).
17 Onokah Family Law, above at note 12 at 273.
18 The doctrine of separate property recognizes the separate rights of spouses to acquire and deal with property during the subsistence of their marriage as if they were not married. Ownership of property is in most cases ascertained by virtue of the strict principles of the law of property, except where a spouse can produce evidence to show some financial contribution to the other spouse's property that could entitle her to some proprietary interest. See Miller, JG Family Property and Financial Provision (2nd ed, 1983, Sweet & Maxwell) at 3Google Scholar.
19 Umukoro “Settlement of matrimonial property”, above at note 5 at 118.
20 See MWPA, sec 1(1).
21 See id secs 2 and 5.
22 See id, sec 1(3)–(5).
23 See Pettitt v Pettitt [1969] 2 All ER 385 (HL) at 393, per Lord Morris.
24 Ibid.
25 Id at 395 and 398. See also Cretney, SM and Mason, JM Principles of Family Law (5th ed, 1990, Sweet & Maxwell) at 234Google Scholar; and Emiri, F and Giwa, AO Equity and Trusts in Nigeria (2012, Malthouse Press) at 424–25Google Scholar.
26 [2003] 2 NWLR (pt 803) 1 at 19.
27 Arinze-Umobi, C “Discrimination / inequitable distribution of matrimonial property upon divorce: Critique of section 72 MCA” (2004) 4/1 Unizik Law Journal 188 at 197Google Scholar.
28 See Egunjobi v Egunjobi [1976] 2 FNLR 78.
29 Amadi v Nwosu 1992 Legalpedia SC UJBT 1 at 4; Essien v Essien [2009] 9 NWLR (pt 1146) 306 at 331–32.
30 See Egunjobi, above at note 28.
31 Above at note 29 at 4.
32 See also Oghoyone v Oghoyone [2010] 3 NWLR (pt 1182) 564.
33 Umukoro “Settlement of matrimonial property”, above at note 5 at 118–19.
34 Ibid.
35 See Cobb v Cobb [1955] 2 All ER 696 (CA) at 700, where it was held that the court's only duty under sec 17 of the MWPA is to determine ownership of property and not to vary vested titles to property. See also Gissing v Gissing [1971] AC 886 (HL) at 904, where it was held that parties’ existing property rights cannot be varied once they have been established under sec 17 of the MWPA.
36 This requires proof of a legal title to property, for example by way of a deed, or proof of a beneficial title by the existence of a trust. In Pettitt, above at note 23 at 393, per Lord Morris of Borth-Y-Gest, it was held that the question before the court under sec 17 of the MWPA was to determine which of the spouses owned the property and not to decide to whom the property should be given based on the court's discretion.
37 Cretney and Mason Principles of Family Law, above at note 25. See also Emiri and Giwa Equity and Trusts in Nigeria, above at note 25.
38 Onokah Family Law, above at note 12 at 267.
39 See MCA, sec 75(1) and (2)(b)(i) and (ii). With particular reference to maintenance or custodial orders, however, the court may proceed to make such orders after dismissing a petition for a principal relief that was heard on the merits, if “(i) the court is satisfied that the proceedings for the principal relief were instituted in good faith to obtain that relief; and (ii) there is no reasonable likelihood of the parties becoming reconciled”: id, sec 75(2)(b).
40 See sec 24(1)(b) of the English Matrimonial Causes Act cap 18 of 1973 for a similar provision on the settlement of property and the power of the English courts in that regard.
41 See “Settlement” in FC Mish Merriam-Webster's Collegiate Dictionary (10th ed, 2000, Merriam-Webster).
42 See “Settlement” in The English Dictionary, available at: <https://en.wiktionary.org/wiki/settlement> (last accessed 19 March 2019).
43 See “Disposition” in The English Dictionary, available at: <https://en.wiktionary.org/wiki/disposition> (last accessed 19 March 2019).
44 See Kafi v Kafi [1986] 3 NWLR (pt 27) 175 at 186–87.
45 Id at 187. See also Akinboni v Akinboni [2002] 5 NWLR (pt 761) 564. This view can be contrasted with the recommendation of the English Law Commission on statutory co–ownership. See PM Bromley Bromley's Family Law (6th ed, 1981, Butterworths) at 420–21, where the author argued that the disposition of such property “would have to be a beneficial and absolute interest in possession and not … a life interest or one held by one of the spouses as a trustee”.
46 MCA, sec 73(1)(j).
47 Onokah Family Law, above at note 12 at 267.
48 Ibid.
49 Ashiru “Gender discrimination”, above at note 6 at 318.
50 Ibid.
51 See MCA, sec 72(1).
52 Onokah Family Law, above at note 12 at 267.
53 Nwogugu, EI Family Law in Nigeria (3rd ed, 2014, HEBN Publishers) at 272Google Scholar.
54 Ibid. Antenuptial settlement is a disposition of property made before marriage.
55 Ibid. Postnuptial settlement is a disposition of property made after marriage.
56 Id at 232, citing the English case of Prinsep v Prinsep [1929] P225 (Fam) on the definition of postnuptial settlement.
57 This is similar to sec 86(2) of the repealed Australian Matrimonial Causes Act No 104 of 1959 (Cth).
58 Dewar v Dewar (1960) 106 CLR 170; Australian Family Law Guide (2nd ed, 1999, CCH Australia) at 207.
59 See Dewar, id at 173.
60 This was the position of the Australian court in Dewar, id, which considered sec 86(2) of the Australian Matrimonial Causes Act.
61 MCA, sec 72(2).
62 See Dewar, above at note 58 at 173.
63 MCA, sec 72(2). See also, Nwogugu Family Law in Nigeria, above at note 53.
64 MCA, ibid.
65 Id, sec 72(3).
66 Onokah Family Law, above at note 12 at 267.
67 MCA, sec 73(1)(d).
68 Id, sec 74.
69 Id, sec 73(1)(h).
70 Id, sec 70(1).
71 Id, sec 70(2).
72 Ibid.
73 Id, sec 73(1)(a)–(c).
74 See id, sec 73(1)(d).
75 See Kafi, above at note 44.
76 This means that the court's order is directed at particular property of a spouse to be used by the other spouse, for example as a home for herself and the children of the marriage.
77 MCA, sec 73(1)(d).
78 Adesanya, SA Laws of Matrimonial Causes (1973, Ibadan University Press) at 228Google Scholar.
79 Tijani, N Matrimonial Causes in Nigeria: Law and Practice (2007, Renaissance Law Publishers) at 180Google Scholar.
80 Ibid.
81 In Akinboni v Akinboni [2002] 5 NWLR (pt 761) 564, although the wife failed to establish joint ownership in the disputed property that was used as the matrimonial home of the spouses and their children, the court restrained the husband from disposing of the property. It granted occupation rights in one of the flats to the wife and children, subject to their good behaviour.
82 Tijani Matrimonial Causes in Nigeria, above at note 79 at 181.
83 Ibid.
84 The court makes these orders in the exercise of its general powers under the MCA, sec 73.
85 Above at note 44.
86 Id at 185–87. See also Sagay, I Nigerian Family Law Principles, Cases, Statutes & Commentaries (1999, Malthouse Press) at 462Google Scholar.
87 Kafi, id at 186.
88 Id at 185.
89 Id at 186.
90 Id at 187.
91 See Dairo v Dairo suit no ID/90HD/86 of 15 July 1988 (unreported) Lagos High Court.
92 Egunjobi, above at note 28 at 85.
93 Ibid.
94 Ibid.
95 Above at note 91.
96 (2014) LPELR-24287 (CA) at 61.
97 E Bonthuys “The rule that a spouse cannot forfeit at divorce what he or she has contributed to the marriage: An argument for change” (2014) 131 South African Law Journal 439.
98 Act No 88 of 1984.
99 Heaton, J and Kruger, H South African Family Law (4th ed, 2015, Lexis Nexis) at 61Google Scholar.
100 Ibid. Marital power under common law enables the husband to exercise his power over his wife's property by virtue of marriage. Under this doctrine, the wife lacks the capacity to contract or litigate.
101 Ibid.
102 Pursuant to sec 12 of the MPA, a wife has the capacity to contract and litigate over her property.
103 See id, secs 2–10.
104 Heaton and Kruger South African Family Law, above at note 98 at 102; de Jong, M “The need for new legislation and / or divorce mediation to counter some commonly experienced problems with the division of assets upon divorce” (2012) 23/2 Stellenbosch Law Review 225 at 227–40Google Scholar.
105 See Monareng, KN A Simple Guide to South African Family Law (2008, Siber Ink CC) at 13Google Scholar; van Schalkwyk, LN General Principles of the Family Law (5th ed, 2014, Printburo) at 241Google Scholar.
106 Robinson, JA “Matrimonial property regimes and damages: The far reaches of the South African Constitution” (2007) 3/1 Potchefstroom Electronic Law Journal 1 at 3Google Scholar.
107 See Brummund v Brummund's Estate 1993 (2) SA 494 (Nm) at 498.
108 There is, however, “a rebuttable presumption that all marriages are concluded in community of property”: Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A) at 10; Skelton, A and Carnelley, M (eds) Family Law in South Africa (2010, Oxford University Press) at 80Google Scholar; Robinson, JA, Human, S, Smith, BS and Carnelley, M Introduction to South African Family Law (5th ed, 2012, Printing Things) at 166Google Scholar.
109 See Ex parte Spinazze and Another NNO 1985 (3) SA 650 (A) at 658.
110 Heaton and Kruger South African Family Law, above at note 98 at 83.
111 See Ex parte Menzies et Uxor 1993 3 SA 799 (C) at 811; Gugu and Another v Zongwana and Others [2014] 1 All SA 203 (ECM) at 210.
112 See Leeb and Another v Leeb and Another [1999] 2 All SA 588 (N) at 597.
113 See ibid.
114 See MPA, sec 14.
115 In respect of non-patrimonial damages, see id, sec 18(a).
116 See Heaton and Kruger, South African Family Law, above at note 98 at 64–67 for a list of assets that can be regarded as the separate property of the spouses in a community of property system.
117 Id at 64.
118 See MPA, sec 1.
119 See id, sec 18(a).
120 See id, sec 19.
121 See ibid.
122 See ibid.
123 Leeb, above at note 112 at 597.
124 See MPA, sec 8(1) for a similar court power in respect of the accrual system.
125 See id, sec 20(2).
126 Robinson et al Introduction to South African Family Law, above at note 108 at 157.
127 See MPA, sec 15.
128 See ibid.
129 See AH van Wyk “Matrimonial property systems in comparative perspective” (1983) Acta Juridica 53 at 62; du Toit, F “South Africa: Trusts and the patrimonial consequences of divorce: Recent developments in Africa” (2015) 8/2 Journal of Civil Law Studies 655 at 660Google Scholar.
130 JD Sinclair “Marriage: Is it still a commitment for life entailing a lifelong duty of support?” (1983) Acta Juridica 75 at 78.
131 Heaton and Kruger South African Family Law, above at note 98 at 91.
132 See MPA, chap 1.
133 In such cases, the accrual system applies automatically by default. See id, sec 2. See also Robinson et al Introduction to South African Family Law, above at note 108 at 157.
134 See MPA, sec 3(1); du Toit “South Africa: Trusts”, above at note 129 at 661.
135 See id, sec 9.
136 See id, sec 4(1)(b) on how the accrual of the spouse's estate is determined.
137 See id, sec 5(1).
138 See id, sec 5(2).
139 Skelton and Carnelley (eds) Family Law in South Africa, above at note 108 at 111.
140 See MPA, sec 6(1).
141 See id, sec 6(3).
142 See Olivier v Olivier 1998 (1) SA 550 (D) at 554 and 555.
143 Id at 554.
144 Id at 555–56.
145 Ibid.
146 [1999] 3 All SA 192 (NC) at 200–01.
147 Ibid.
148 See MPA, sec 7.
149 See id, sec 3(2). See also Reeder v Softline Ltd and Another 2001 (2) SA 844 (W) at 849; MB v NB 2010 (3) SA 220 at 232; M de Jong “The cut-off date for determining accrual claims: A cruel decision and a better decision” (2011) 74 Journal of Contemporary Roman-Dutch Law 472 at 474.
150 MPA, sec 8(1). See also Reeder v Softline, ibid.
151 See MPA, ibid.
152 See id, sec 8(2).
153 du Toit “South Africa: Trusts”, above at note 129 at 661.
154 Sinclair, JD “The financial consequences of divorce in South Africa: Judicial determination or private ordering” (1983) 32/4 International and Comparative Law Quarterly 785 at 797–98CrossRefGoogle Scholar; de Jong “The cut-off date”, above at note 149.
155 du Toit “South Africa: Trusts”, above at note 129 at 660.
156 Id at 662.
157 Visser, PJ and Potgieler, JM Introduction to Family Law (2nd ed, 1998, Juta & Co) at 88Google Scholar.
158 See MPA, sec 9.
159 Heaton, J “Striving for substantive gender equality in family law: Selected issues” (2005) 21 South African Journal on Human Rights 547 at 564CrossRefGoogle Scholar.
160 Id at 574.
161 Id at 563.
162 See OM Adekile “Property rights of women in Nigeria as impediments to full realization of economic and social rights” (26 May 2010) SSRN 1 at 13–14, available at: <http://ssrn.com/abstract=1616270> (last accessed 26 November 2018).
163 See Amadi v Nwosu, above at note 29 at 4; Aderounmu, above at note 26; and Essien, above at note 29 at 331–32. See also Ashiru “Gender discrimination”, above at note 6 at 322.
164 See Cobb, above at note 35 at 700.