The Respective Rights of Husband and Wife to Marital Real Property


By H. O. Eze, Esq.

Before delving into this discourse, it is important to note few preliminary points.

In marital relationship the last thing that should operate in the minds of the parties involved is that they would get to a point where the marriage would be brought to an abrupt end or contemplate that a time would come when sharing of marital property would become an issue that may be very contentious.

The Concept of Marriage

Merriam-Webster dictionary defines marriage as a state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law. The three categories of marriages envisaged under the Nigerian law are the traditional/Customary marriage; Church/Islamic marriage and Statutory marriage.

A Statutory marriage which is the major concern of this discourse is a marriage within the provisions of the Marriage Act. It is a marriage of one-man-one-wife to the exclusion of all other.

Statutory marriage has become popular in recent times because the party seeking to dissolve the marriage must prove to the satisfaction of the Court that the marriage has broken down irretrievably. Moreover, in case of dissolution of marriage, the Matrimonial Causes Act provides for custody of the children of the marriage and settlement of property.

However, despite the popularity of Statutory marriage, Nigerians as most Africans, contract Traditional/Customary marriage first before contracting Church or Statutory marriage or both. In fact, the process of conducting Statutory marriages at most Marriage Registry envisages that a couple may have contracted Traditional/Customary or Church/Islamic Marriage before applying to contract Statutory Marriage.

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Issuance of the Registrar’s Certificate is paramount for the validity of a Statutory marriage. In the case of Anyaegbulam Vs. Anyaegbulam (1973) 4 S.C 121, the Supreme Court placed it beyond doubt, that celebration of statutory marriage which to the knowledge of the parties is not preceded by the issuance of the Registrar’s Certificate is ineffectual, null and void.

Marital Real Property

Real estate is defined as land at, above, and below the earth’s surface, including all things permanently attached to it, whether natural or artificial. For the purpose of this expositions, Real property refers to land or building on land as physical object.

Firstly and for purposes of clarity, property acquired by each of the spouse before marriage belongs to that spouse free from any interest of the other spouse, and if any of the spouse predeceases the other, the property inures to the benefit of the living spouse through the issue of the marriage and in the case of the husband, the issue or heir to inherit his property could be issue of the marriage or an issue of a strange woman prior to the statutory marriage.

The position of the law with respect to property acquired under customary law marriage (ie marriage under custom) appear ossified. There is no separate ownership by spouses. Every property belongs to the husband.

It is worthy to note that there is nothing under the law that prevents the transmutations of customary marriage to statutory marriage in Nigeria though the reverse is not even infrequent despite clear statutory sanction against it.see Jadesimi Vs. Okotie Eboh (1996) 2 NWLR PT. 429.

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For property acquired jointly during statutory marriage the position of the law is that the husband has preeminent control over it and the husband took a life estate with a remainder to his heir. This is in conflict with provisions of the Married Women property Act of 1882, Section 40 of the 1999 Constitution and international conventions which Nigeria has ratified.

Despite the apparent conflict, this position of the common law still stands, this is for the reasons of local circumstances.

Worthy to note is that Property acquired by wife separately and in her name belongs to her as held by the Supreme Court in the case of Grace Madu Vs. Betram Madu (2008)6NWLR (PT. 1083) 296.

Also, the good news is that there are other openings through which a wife can assert some rights over marital property.

The development of Constructive trust is an imposition by equity in order to satisfy the demands of Justice and good conscience without reference to any express or presumed intention of the parties, it is a trust imposed by law whenever Justice and good conscience requires.

In claim under Constructive trust in statutory marriage if the marriage breaks down, the wife would be entitled to 50% or half of the husband’s real estate or vice versa. See the case of Mansah Vs. Barkoe (1953) 2 GLR. 347.

According to the revered and intellectually robust Hon. Justice I. A. Umezulike of blessed memory this position should only be taken if and only if the cause of the breakdown of the marriage is not traceable to the spouse claiming under Constructive trust.

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This reservation is placed so as not to convert matrimony into an affair of gold digging. More importantly a wife who relies on Constructive trust must show that she kept the matrimonial home in bliss rather than in bondage.

In a claim under Constructive trust, the wife need not establish her right to Marital property with sufficient particularity, it would be sufficient that they were married for a reasonable length of time and that she had been making some direct or indirect contribution to the general welfare of the family.

Constructive trust which any of the parties can claim under, appeals to conscience more than it refers to marital contribution of spouses.

Married women who are mostly worsted in the event of marriage hitting the rock find some respite in the doctrine .


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