Advancing Women's Rights to Joint Ownership of Matrimonial Property in Nigeria: Using Kenya as a Model

Marriage is one of the oldest institutions which is still respected globally. It is a common practice for husband and wife to acquire properties in the course of marriage. When couples live happily, the question of who owns what property does not arise. This is so because cultural and religious beliefs in many parts of the world, including Africa, make spouses see themselves as one indivisible whole, and are therefore very unlikely to anticipate marriage dissolution until the marriage begins to experience irresolvable crisis. The increasing legal battles over rights to matrimonial property by spouses during the determination of marriages reinforce the economic value now attached to marriages and the need for social justice and economic security for the less privileged spouse. In Nigeria, Justice Roland (JCA) affirmed correctly in Akinbuwa v. Akinbuwa that ‘settlement of property between spouses’ has become ‘a thorny issue in matrimonial proceedings.’¹

It is true that modern realities in Africa and globally reveal an increasing number of divorces and separations owing to a lot of factors, such as social pressure, barrenness or infertility, absence of love, infidelity, insecurity, professional career, and job mobility.² One of the contentious issues in the resulting marriage dissolutions after irresolvable marital crises has always been arguments of spouses over rights to their matrimonial property. It is naturally expected from the contending less economically empowered spouse to demand a share in matrimonial assets because his/her economic survival after divorce is naturally of paramount interest to him/her. Also, having made a lot of sacrifices for the wellbeing and acquisition of the wealth/property (as the case may be) of the marriage in terms of labour, care-giving, self-denial, and financial contributions (which may or may not be receipted for) he or she would insist not to leave the marriage without being given a share in whatever property was acquired in the course of marriage.

It is common knowledge that because a husband is still regarded as the ‘head of a home’ in Nigeria and in many parts of Africa, matrimonial properties are more often acquired in his name even when such properties are/were purchased with financial assistance from the wife.³ It is also a common reality that the traditional African wife or many wives from Christian or Islamic homes will hardly demand of their husbands that their financial contributions to matrimonial property acquisitions be documented in writing or receipted. The reality in Nigeria today is that the absence of a clear concept of matrimonial property in statutory and case law provisions leaves the disadvantaged spouse, often the female, with a lot of bitterness, regret, and economic insecurity during matrimonial property settlements after marriage dissolution.

The truth is that joint ownership of matrimonial property is not given due recognition in the Nigerian legal system even with the rapidly growing social, educational, and economic status of women. Flavia has rightly asserted that, in Nigeria, there is no concept of division of matrimonial property, and the suggestion for division is dismissed as a ‘Christian and/or Western imposition.’⁴ Furthermore, the decision to award a fair share of the entitlements to the ‘warring’ spouses is left at the discretion of the courts that, more often, rely on a common law principle which stresses direct and substantial financial contribution and ignores the reality of mutual cooperation and understanding in many marriages. The situation renders the less privileged spouse at the mercy of unfair and inconsistent judicial interpretations in the determination of the marriage. This is why, in her paper on this subject, Ipaye rightly asks:

Where the spouse is unable to prove her exact financial contributions to the marital property, does it mean, she gets nothing? Should she not have an equitable interest in the property based on her contributions as a homemaker? How does she get fair compensation?⁵

Actually, the rights of spouses to matrimonial property have been on the front burner⁷ in many foreign jurisdictions including Kenya’s. Meanwhile, policymakers, legislators, and judges in the Nigerian legislative and judicial systems, as the case may be, have remained unaware or insensitive to global trends and developments in this area of the law even when the contentious claim for matrimonial property settlement is as serious in Nigeria as in other jurisdictions. In Kenya, for instance, issues relating to matrimonial property settlements have been tackled headlong through case law and statutory enactments. Observably, reforms in this area of the law in Kenya have been triggered partly by identifiable lapses/gaps in their laws and partly by changing values, increasing enlightenment and the socio-economic demands of industrialisation, capitalist orientation, and advancing democracy, which will be explained later when analysing improvements in Kenya’s law on matrimonial property settlement upon marriage dissolution. This article argues, therefore, that the Nigerian judiciary and legislature can adopt the Kenyan initiative since matrimonial property settlement in the Nigerian court has become a contentious issue owing to evolving modern consciousness and social-economic realities. First, in Nigeria, there has to be a recognition and clear concept of matrimonial property ingrained in law.

An important component of any law on marriage and the family should encompass a clear definition of ‘matrimonial property’ as this obviously would have an enormous impact on the ultimate sharing formula of such property during marriage dissolution.⁸ The precise definition of what constitutes matrimonial property differs in many jurisdictions, though in Nigeria the concept is not defined at all by statute or case law. There is also no statutory guidance in Nigeria on the factors necessary for the court to consider in matrimonial property sharing compared to what obtains in many jurisdictions, including Kenya.

In defining matrimonial property, therefore, this article relies on the various definitions proffered in other jurisdictions. Section 6(1) of the Matrimonial Property Act 2013 of the Republic of Kenya⁹ defines matrimonial property to include the matrimonial home, household effects and goods in the matrimonial home, and immovable and movable assets obtained through purchase or otherwise in the course of the marriage. However, Section 9 of the Act provides that property acquired prior to, or during, marriage may not be classified as matrimonial property if it was exclusively acquired by one of the spouses without any contribution from the other. If the other spouse, who is not the acquirer/purchaser, makes an improvement on the property, he/she has acquired a beneficial interest in it which is equal to his/her contribution.

In the State of New York, United States of America, the Domestic Relation Law 2015 (DRL) provides that the term ‘marital property’ means:

all property acquired by either or both spouses during the marriage and before the execution of a separate agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in an agreement.¹⁰

The foregoing definitions are not only apt in capturing the concept of matrimonial property; they also present a guide to the formulation of any legal framework on the subject in Nigeria. While the concept of matrimonial property is oftentimes restricted to movable and immovable property in a developing nation such as Kenya, for many developed nations the concept is broadened and the stakes are becoming higher for assets that should constitute matrimonial property. Thus, Knetsch says that:

In the bulk of cases, families have been perceived as having limited assets, posing a problem of how these can be stretched to accommodate the needs and wishes of both parties. While distribution rules are still clearly of interest in such instances, the stakes are becoming greater for almost all families and direct interest in the division rules is no longer restricted to the wealthy.¹²

Joint ownership arises in property law where two or more persons acquire property either by purchase or joint contribution to its acquisition. The term ‘joint ownership’ is often used to include joint tenants and tenants-in-common. Both types of joint ownership share one thing in...