Abstract
In Nigeria, marriage is hardly conceived as a partnership of equals in relation to the property rights of spouses during marriage and at divorce. This is because the Nigerian courts do not redistribute property at divorce. This leaves the financially weaker spouse (usually the wife) at an economically disadvantaged position. This article therefore compares the position of the matrimonial laws in England with that of Nigeria, whether there are provisions for the redistribution of property between the spouses at divorce. The comparative analysis reveals that family laws in England empower the family court to redistribute property amongst spouses at divorce. On the contrary, the matrimonial property laws in Nigeria provide for the settlement of property at divorce. The analysis also reveals that the courts in Nigeria adopt the strict property rights approach in ordering the settlement of property, which is detrimental to the wife. The article also makes a case for a redistribution through the economic analysis of the worth of a housewife. The authors therefore argue that the Nigerian courts should depart from this approach and borrow from the English courts. The authors recommend the amendment of the matrimonial property laws to fill this gap. That would enable the Nigerian courts to make a redistribution order, so as to vary the recognised property rights of spouses in order to provide compensation for any reasonable loss caused by marriage and ensure that the financial benefits of marriage are shared on a just and equitable basis.
Highlights
It is not a matter of debate that disputes concerning the settlement and transfer of property at divorce most often give rise to litigation, especially in countries with advanced or well-defined matrimonial property regimes which recognise the various rights and contributions of spouses in relation to such property.1 While in some countries the divorce courts have wide powers under the statute to redistribute property as they deem just and equitable taking cognisance of statutory guidelines,2 in others the way and manner in which property is redistributed or divided at divorce are regulated by statute, thereby allowing courts little or no discretion to interfere in the redistribution of property.3The position of the law in Nigeria is radically different
The analysis reveals that the courts in Nigeria adopt the strict property rights approach in ordering the settlement of property, which is detrimental to the wife
The legislative mechanisms for divorce under English laws can be traced to the Matrimonial Causes Act, 1857, which came into force in 1858.115 At that time, action for divorce began in the "Ecclesiastical Courts under the canon law of the Church of England for 'separation from bed and board' ie allowing the couple to live apart";116 continued with action at common law for "criminal conversation", that is a suit for damages for adultery, the only reason for the divorce,117 and action via parliamentary legislation for the award of the divorce and an opportunity to remarry
Summary
It is not a matter of debate that disputes concerning the settlement and transfer of property at divorce most often give rise to litigation, especially in countries with advanced or well-defined matrimonial property regimes which recognise the various rights and contributions of spouses in relation to such property. While in some countries the divorce courts have wide powers under the statute to redistribute property as they deem just and equitable taking cognisance of statutory guidelines, in others the way and manner in which property is redistributed or divided at divorce are regulated by statute, thereby allowing courts little or no discretion to interfere in the redistribution of property.. This is by virtue of the enactment of the Marriage Act (hereafter the MA) and the MCA, together with the combined effect of the provisions of the Married Women's Property Act (MWPA), which granted married women the right to own their own separate property as if they were feme sole.21 Notwithstanding this shift in focus from customary to statutory marriages with their proprietary consequences, the ordinary rules of property law, which are in most cases applied by Nigerian courts, still do not produce the desired justice as they are based on the establishment of legal ownership.. The article ends with suggestions on how to amend Nigeria’s MCA in order to reflect the proposed changes
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