PROPERTY SETTLEMENT IN NIGERIA
A prenuptial agreement might sound foreign to many Nigerians but it truly exist. It is a contract between two people before they are married that covers a variety of issues centered on property rights and assets.
In recent times, divorce has become a common thing among married people, at the end of any contract or agreement most times there is a settlement. During the course of a marriage, couples might obtain some assets individually or as a couple especially properties.
It is safe to conclude that marital property is a property that its full ownership was acquired during the course of marriage by any of the spouses. Legal scholars have opined that by the words of the Matrimonial Causes Act, the court cannot share property (in sense of transferring titles) in cases of termination of marriage but can only settle properties.
The Property should have been purchased in the cause of the marriage or when the payment of the property was completed after or in the cause of marriage.
Matrimonial cause act specifically sections 70,71,72 and 73 claims the court has unlimited power in determining the fate of all properties of spouses, where there is divorce. The court does not focus on ownership of property, since undoubtedly, ownership rests on the marriage union and their participants. The court focuses on the management (sharing and settlement) of the property for the benefits of the participants of the marriage union. Section 72(1) of the matrimonial cause act states that property settlement of divorced couples should be done in a manner that is just and equitable in the circumstances of the cases.
A couple may agree to settle their property through a pre-marriage agreement (pre-nuptial contract) or a post marriage agreement(post-nuptial contract). The transfer of property must be contained in the divorce petition and should not be an after thought. All agreement towards the sharing and settlement of marital property must be presented to a state high court for the judge to verify it and ensure it is just and equitable in the circumstances of the cases.
There cannot be a valid and lasting settlement of marital property without the orders and blessings of a court of law. Only the state high courts and high court of the Federal capital Territory, Abuja, can entertain and resolve cases of divorce and settlement of marital property in English marriages. The judges are to apply apply fairness and equality in settling marital property in line with the needs of spouses and their children.
There are two common models that judges in Nigeria use in the settlement of marital property namely:
- MALE-CHAUVINIST APPROACH :It is a sympathizer to the customary system that women are properties, wives have to show documentary proof of their contributions to the ownership of a marital property, even where there are obvious proof that wives earned more and even took care of their family affairs and costs.
- THE EGALITARIAN APPROACH: This method treats the spouses equally and takes into consideration their wholistic contributions to the marriage. It focuses on the unquantifiable contributions of spouses toward marital properties. It is unbiased towards any spouse or sex, by treating all spouses equally and fairly hence marital properties are considered to be jointly owned by both spouses, since both contributed in diverse ways towards the marriage itself and not towards specific items and properties.
Wives often play non-financial roles towards property acquisitions and as such must not be left out in the sharing of marital properties. Wives focus on the education and advancement of the children, while husbands focus theirs on marital properties.
It is important to note that English marriages can only be terminated by a court of law and the marital properties shared by the court, among the spouse and for the benefit of the children, in a manner that is just equitable. The judge of the high court is solely responsible for fairness in the settlement and sharing of marital property.
Judges are advised to be egalitarian at all times, focusing on fairness to all spouses under the egalitarian approach in the settlement of marital property.