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

Abstract

This article critically reviews the concept of matrimonial property in Nigeria, with particular reference to real property and the rights of spouses to it during marriage dissolution, against the backdrop of extant statutes and case law on the subject, and makes a case for a reform using Kenya’s progress in this area of law as a model. It identifies gaps and inconsistencies in the existing statutes and case law on the subject in Nigeria which render many verdicts controversial, unsatisfactory and inequitable. First, the reviewed literature identifies that neither statute nor case law proffers a definition of matrimonial property. Secondly, the only criterion in the Matrimonial Causes Act 1970 for sharing property amongst spouses upon divorce, which is to the Judges’ discretion, has often been wrongly applied to stress substantial contribution in financial terms. This is due to the fact that the common law principle adopted in matrimonial property sharing upon dissolution of all types of marriages in Nigeria stresses substantial contribution in financial terms. This common criterion is unrealistic in light of modern global and local economic, social, and cultural realities; its application is also obsolete in the English jurisdiction where it originated. This paper therefore makes a case for the emergence of a law which will define matrimonial property and also specifically state the rights of spouses and resolve lingering issues of inconsistencies and lack of fairness arising from both the existing statutes and case law using Kenya’s progress in matrimonial property system as a model.