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Marriage whether statutory, customary, or Islamic,[i] is more than the ceremony between a man and a woman. Beyond the white wedding dress, tuxedos, flowers, delicious food, “asoebis” and “owambe”, there are significant legal implications on the right of parties to inherit and dispose of properties. The Nigerian Constitution[ii] recognizes the right of Nigerians to own property in Nigeria. By this, ordinarily, a husband or wife can individually acquire properties in their names.
Pointedly, there are 3 major types of marriages recognized in Nigeria: Marriage under the statutes, Islamic marriage, and traditional marriage. However, irrespective of the type of marriage contracted, a common error most couples run into while acquiring or disposing of properties jointly is the use of the description “Mr. and Mrs. X” as opposed to “Mr. James X” and “Mrs. Jean X”. It is important legal persons be well described, else the contract contemplated may be voidable. This is because the appropriate title and name recognized in the eye of the law are “Mr. James X” and “Mrs. Jean X” or such names as the case may be.
Joint ownership may be considered by a couple for different personal, religious or cultural reasons. Under such joint ownership, a husband and wife share equal ownership of the property and have the equal undivided right to keep or dispose of the property.[iii] They are also afforded survivorship rights in the event of the death of a co-owner. In simple terms, it means that when one partner or spouse dies, the other receives all of the property they own jointly. However, it is important to note that the powers exercisable on such property must be exercised jointly by both parties. As such, the husband cannot without his wife’s consent, dispose of or transfer by a Will, any property he jointly owns with his wife, even after the dissolution of the marriage.
Property held in joint ownership can only be sold with the consent of all the joint owners. A co-owner cannot sell the property without approval from the co-owner. There must be an agreement to sell among the co-owners. Both parties, that is, the husband and wife must equally sign the appropriate documents/instruments before the property can be effectively sold, leased, or otherwise dealt with.
Read also: The legal rights of spouses in marriage under Nigerian law
There are replete cases where the issue of joint ownership has been brought to the court for pronouncement. In Kobuwa & Anor V. Lamudu & Anor[iv] for example, the question of whether a joint owner of land can transfer title to land without the consent of the co-owner arose. It was held that “where the property is jointly owned by more than one person, each of the joint owners does not own any part of the property which he can singly dispose of until the property is partitioned”. Indeed, this principle is time-honored and accords with common sense.
ii. The legal implication of a Joint Ownership of Property
There are legal implications on the purchase, gift, or inheritance of joint property by two or more persons. These include;
It is significant to mention also that there are several marital property regimes applicable globally[v]. However, typically in Nigeria, there is a semblance of a partial community of property in effect. The true significance of these comes to play in the event of the death or divorce of one of the couples. In the event of a divorce, the general rule is that every property acquired by each of the couple is to be added together and they are to be split amongst them equally. Every property acquired during the marriage; including real estate, money at hand or in the bank accounts or stocks/bonds or chattels like clothes, shoes, jewelry, house decorations, and bags, are presumed to be marital properties, jointly owned and are to be collected/collated together and shared equally amongst the couples in the event of divorce.
It is important for a couple to thus recognize the applicable regimes which apply to them as it will affect the further disposal of their properties in the event of death or in the event of a divorce. This will also determine whether a pre-nuptial agreement will be necessary to serve their interest or not.
[i] The Nigerian system recognizes three types of marriages, which are statutory marriage; customary marriage; and Islamic marriage. The “church marriage” is at best a ceremonial blessing if the church is not a licensed place to carry out a statutory wedding.
[ii] Section 43 of CA
[iii] The couple can individually purchase properties in their own name alone as well.
[iv] (1998) LPELR-6364 (CA)
[v] I. Separation of property: In this regime, all assets and income acquired by the spouses both before they
marry and during the marriage remain the separate property of the acquiring spouse. At
the time of divorce or the death of one of the spouses, each spouse retains ownership of all
assets and income brought to the marriage or acquired during marriage by that person and
any value that has accrued to that property.
ii. Partial community of property: In this regime, assets acquired before marriage are regarded as the sepa-
rate property of the acquiring spouse, and assets and income acquired after marriage, with
a few exceptions specified by law, are regarded as joint property of the couple. This regime
also applies to cases where assets acquired before marriage and assets acquired during
marriage are regarded as the separate property of the acquiring spouse but the accrued
value of the property acquired by any of the spouses is considered joint property. At the
time of dissolution of the marriage, the joint property or its accrued value is divided equally
between the spouses.
iii. Full community of property: In this regime, all assets and income whether brought into the marriage or
acquired during the marriage, with a few exceptions specified by law, become the joint
property of the couple. If the marriage is dissolved, all joint property is divided equally
between the spouses.
iv. Deferred full or partial community of property: In this regime, the rules of the full or partial community of
properly apply at the time the marriage is dissolved; until then, the separation of property
applies.
Written by Deborah Onafadeji for The Trusted Advisors
Email us: info@trustedadvisorslaw.com