Settlement of Property

Settlement of property refers to the process whereby the property of a party to a marriage or joint property of both parties is finally transferred to one of the parties or distributed amongst both parties and the title(s) vested accordingly.[i]

Under the Nigerian law, settlement of properties is one of the ancillary reliefs that the court may order in matrimonial proceedings and it is provided for under section 72 of the Matrimonial Causes Act (the “Act”)[ii] which is set out as follows:

1. The court may, in proceedings under this Act, by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, 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 considers just and equitable in the circumstances of the case.
2. The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them.
3. The power of the court to make orders of the kind referred to in this section shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.”

From the provision set out above, the following points can be noted.

1. The property to be settled must be owned by one or both spouses.
2. There is no restriction on the type of property which may be settled. It can be real or personal but does not seem to include payment of money by one spouse to another.
3. Properties can be settled for the benefit of one or both spouses; and Children of the marriage who are less than 21 years.[iii]

Powers and consideration of the Court in making an order for settlement

The Act has set out two parameters for the Court to consider in making an order for settlement. They are (i) justice and (ii) equity. Thus, the Court may make only such settlement as it considers just and equitable in the circumstances of each case.

In determining the extent of property to be settled, the court will also consider all the circumstances of the case. According to Nwogugu[iv], it is unlikely that a spouse may be ordered to make a settlement for the benefit of the parties and their children unless his or her property greatly exceeds that of the spouse.

The attitude of the Nigerian Courts

The scope discretionary power conferred on the Court by section 72 of the Act is very wide. In exercising this discretion, one of the major factors the courts consider is contribution to the acquisition of the property or joint ownership of the property. Nigerian courts more often than not share property in a marriage to the benefit of men, who usually have higher income. This is because the court insists on contribution to the property as the basis for division. In Essien v. Essien[v], the Court of Appeal restated the decision of the Supreme Court in Adaku Amadi v. Edward Nwosu[vi], to the effect that direct financial contribution to the purchase price of a matrimonial home or to the repayment of the mortgage must be proved before joint property can be inferred. The court accordingly refused the appellant’s case on the basis that she did not prove contribution. In Oghoyone v Oghoyone, the court held that the respondent was entitled to joint interest because both parties contributed to the property.

Where an applicant fails to establish joint ownership or contribution to the property, the court will only be disposed to settle such minimal portion of the property to meet the basic need or demand of the applicant. In the case of Doherty v. Doherty[vii] the court upon reaching the finding that the Applicant (respondent in the divorce proceeding) did not claim or prove joint ownership of any or all the six choice properties of the Petitioner gave the Applicant a 3 bedroom flat in a remote area of Lagos State. In settling the properties in this case, the court also considered the outstanding indebtedness of the Petitioner and the possibility that he may sell some of his properties to settle the indebtedness. This exercise of discretion by the High Court was affirmed by the Court of Appeal.

It is important to note that the appellate courts will hardly interfere with the exercise of discretion by the lower court unless the appellant is able to prove that the exercise of discretion by the lower court was not just or equitable.

Maintenance

Section 70 of the Act empowers the court to make an order for maintenance. For ease of reference, the section provides as follows:

1. Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earnings capacity and conduct of the parties to the marriage and all other relevant circumstances.
2. The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.
3. The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.”

From the above, the following points can be noted.

1. Either party (man or woman) may apply for maintenance.[viii]
2. Maintenance order can be made for the benefit of either party and or children of the marriage.[ix]
3. Maintenance order can be made during the pendency of substantive matrimonial proceedings and on completion of the proceedings for the principal relief (permanent maintenance).[x]
4. The Court has absolute discretion to determine whether or not to award maintenance and the quantum to be awarded if it decides to award.
5. A child of the marriage that is above 21 years is not entitled to maintenance.

 

Factors considered by the court in making an order for maintenance:

In the exercise of its absolute discretion in making an order for maintenance (whether in respect of maintenance pending the disposal of the substantive proceedings or principal relief), the court will consider the following:[xi]

1. Means of the parties
2. Earning capacity
3. Conduct of the parties
4. Other relevant considerations.

We shall in the succeeding paragraphs consider these factors seriatim.

1. Means of the parties.

Before the Court can make an order for maintenance, the court must have before it evidence that will enable it to determine the means of the party. In the case of Ibeabuchi v. Ibeabuchi[xii] the Court of appeal gave an extensive description of means to include the parties’ income, earning capacity, property and financial resources, financial needs and responsibilities, standard of life before the dissolution of marriage, the respective age and length of time they were together as husband and wife.  However, in the case of Negbenebor v. Negbenebor[xiii] the Supreme Court gave a narrow definition of means to be a party’s income which is the salary and not the value of his house or credit in the account. Also in the case of Olu-Ibukun v. Olu-Ibukun[xiv] the Supreme Court held that a man’s house and money in his bank account are not income and should not be considered in awarding maintenance.

In a nutshell, the court in making an order for maintenance will most likely take cognizance of the income of the party as opposed to the asset and money in the bank account.

2. Earning capacity

In making an order for maintenance, the court would consider the earning capacity of the spouse. In doing this, the court takes into account the age, health, skills and responsibilities of the couple.

3. Conduct of the parties

The court in making assessment for maintenance shall not have regard to any allegation concerning the conduct of the claimant or the spouse of the claimant, whether or not that conduct in question in the proceedings for the principal relief unless that conduct is relevant to the means or financial needs of the claimant or his spouse or to the capability of the claimant or his spouse to earn income.[xv]

4. Other relevant considerations

This is an omnibus clause or condition stipulated in the Act that allows the court to have flexibility in exercising its wide and absolute discretion in order to consider other relevant factor that may not have been specifically mentioned in the Act. This may include for instance the peculiar culture and way of life of the spouses.

Other important points to note

1. Parties to proceedings for maintenance pending a substantive suit may take the determination of the quantum of the award of maintenance out of the hand of the court by reaching a mutual agreement on the maintenance to be paid.[xvi]
2. The death of one of the spouses when the case is still pending terminates the maintenance order.[xvii]

Conclusion

With respect to ancillary reliefs, the Act has placed spouses in a marriage on an equal footing. Thus either of the parties may apply for settlement of property or maintenance. The Act also confers the courts with very wide and absolute discretion and powers to determine whether or not the award of any ancillary relief will be granted and if granted the quantum to be awarded. The belief, ideology and disposition of the Judge handling each case may therefore go a long way in determining the potentiality of a grant or otherwise. It may also go a long way in determining the quantum of ancillary reliefs in matrimonial proceedings if granted.

[i] Nasiru Tijani: Matrimonial Causes in Nigeria – Law and Practice (2007) at 161.

[ii] Cap M7 LFN 2004

[iii] Unless there are special circumstances to justify the making of such an order. See section 72(3).

[iv] E.I Nwogugu – Family Law in Nigeria (Revised Edition) 1990 at page 260

[v] (2009) 9 NWLR (Pt. 1146) 306, 331-332

[vi] (1992) 6 SCNJ 59

[vii] (2009) 30 WRN pg. 96

[viii] See Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41. This is unlike the Common law practice where the husband is bound to maintain the wife without a corresponding duty by the wife.

[ix] See section 70(1) of the Act. Children of the marriage will include adopted children or children of either of the parties.

[x] See section 70(1) and (2) of the Act respectively. In Olu-Ibukun v. Olu-Ibukun (supra) the Court held that the purpose of maintenance pending suit is not to enable the wife share her husband’s fortune. Rather it is to ensure that she should be able to live approximately in the position to which she has been accustomed until the suit is completed.

[xi] E.I Nwogugu – Family Law in Nigeria (Revised Edition) 1990 at page 250.

[xii] Unreported Appeal No. FCA/E/5/82 of 22/9/82 (See Sagay, I. (Op. cit) page 499

[xiii] (1971) 1 All NLR 210

[xiv] (1974) 2 SC 41

[xv] See Order XIV Rule 8(2) and Rule 15 of the Matrimonial Causes Rules.

[xvi] See Order XIV Rule 14 of the Matrimonial Causes Rules.

[xvii] See Dejonwo v. Dejonwo (1993) 7 NWLR (PT. 306) 438.

[1] Joshua Abe is the Managing Partner and head of Dispute Resolution Practice at CM Advocates Nigeria.

[1] Nasiru Tijani: Matrimonial Causes in Nigeria – Law and Practice (2007) at 161.

[1] Cap M7 LFN 2004

[1] Unless there are special circumstances to justify the making of such an order. See section 72(3).

[1] E.I Nwogugu – Family Law in Nigeria (Revised Edition) 1990 at page 260

[1] (2009) 9 NWLR (Pt. 1146) 306, 331-332

[1] (1992) 6 SCNJ 59

[1] (2009) 30 WRN pg. 96

[1] See Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41. This is unlike the Common law practice where the husband is bound to maintain the wife without a corresponding duty by the wife.

[1] See section 70(1) of the Act. Children of the marriage will include adopted children or children of either of the parties.

[1] See section 70(1) and (2) of the Act respectively. In Olu-Ibukun v. Olu-Ibukun (supra) the Court held that the purpose of maintenance pending suit is not to enable the wife share her husband’s fortune. Rather it is to ensure that she should be able to live approximately in the position to which she has been accustomed until the suit is completed.

[1] E.I Nwogugu – Family Law in Nigeria (Revised Edition) 1990 at page 250.

[1] Unreported Appeal No. FCA/E/5/82 of 22/9/82 (See Sagay, I. (Op. cit) page 499

[1] (1971) 1 All NLR 210

[1] (1974) 2 SC 41