Abstract

Keywords

Divorce; marriage; Nigeria; property; property rights; women.

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1 Introduction

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.3

The position of the law in Nigeria is radically different, however. At divorce Nigerian courts do not order the redistribution of property amongst spouses; neither does the extant law contain any guidelines for doing so.4 This is notwithstanding the fact that section 72 of the Matrimonial Causes Act (hereafter the MCA)5 grants the court the power to make a property settlement order.

Nigerian family law is founded on the English common law tradition which forms a significant part of Nigerian law.6 Consequently, whenever there is a dispute between spouses over the ownership of property at divorce, "the

courts have recourse to the ordinary rules of property law".7

Prior to the Received English Law in Nigeria and the enactment of statutes which regulate the property rights of spouses,8 customary law marriage9 was the usual practice in Nigeria.10 The capacity of a wife married under customary law to acquire and own property is dependent on the tribe or village into which she marries because customs are diverse in Nigeria.11 In Ibo culture a woman married under customary law is not permitted to acquire and own property to the exclusion of her husband.12 The justification for this is that in pre-colonial times both the capital with which a woman traded and her income were seen as belonging to her husband.13 The wife's right to acquire and own real estate was subject to the husband's prior consent and overall control14 and a woman married under the customary law was not entitled to the settlement or transfer of property, other than her personal effects, at divorce.15 Conversely, some cultures permit the customary law wife to own both personal and real property,16 as the property of the wife is always separate and distinct from the husband's.17 The Idoma customary wife can own property, but it is believed that whatever property she owns belongs to her husband and heir.18 It is worthy of note that some of these customs are being eroded.

Under customary law, however, whether separately or jointly owned by the spouses, properties cannot be redistributed by the courts upon the application of a spouse for the benefit of either spouse or the children of the marriage. What the court does is to determine "who owns what" by virtue of

purchase, acquisition or inheritance.

The legal position of the property rights of women has been made clearer by the introduction of statutory marriage in Nigeria. This is by virtue of the enactment of the Marriage Act (hereafter the MA)19 and the MCA, together with the combined effect of the provisions of the Married Women's Property Act (MWPA),20 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.22

The position of the law in Nigeria vis-à-vis the practice in other countries is that a spouse who claims an interest in property must show cogent evidence of a financial contribution to its purchase.23 In a number of cases24 Nigerian courts have held that, where a spouse (in most cases the wife) does not contribute financially towards the acquisition of a property, her claim for an interest in such property purchased by the male spouse will fail at divorce.25 The courts do this by holding that the property rights between married spouses are completely separate. For a spouse's application for a property right to succeed, he or she must prove, on a preponderance of probability, that he or she is a joint owner of the property in question or that his or her financial contribution towards the purchase or development of the property was substantial.26

The need for the courts to recognise the beneficial entitlements of spouses at divorce taking into consideration the direct and indirect contributions of spouses to the acquisition of property and their respective contributions to the welfare of the family is advanced. The opinion is expressed that a law which empowers the court to make a redistribution order at divorce will reflect the current trend in the marital relationships between spouses in Nigeria and equally be in tune with the progressive changes occurring

globally in the field of matrimonial property law.

The purpose of this article is to compare the position of the matrimonial laws in England and Nigeria in order to establish the extent to which provision is made for the redistribution of property between spouses at divorce. The intention is to draw lessons from the matrimonial laws in England that can help empower and guide courts in Nigeria to redistribute property amongst spouses at divorce. The article begins by discussing the legal position in Nigeria and the approaches adopted by Nigerian courts in addressing property rights of spouses at divorce. This is followed by a discussion of the property rights of spources under English law in part 5 of the artice. Drawing inspiration from part 5, part 6 of the article makes a case for a redistribution order at divorce in Nigeria. The article ends with suggestions on how to amend Nigeria’s MCA in order to reflect the proposed changes.

2 Property rights of married women under statute

Section 72 of the MCA makes provisions for the power of the High Court in proceedings relating to the settlement of property.27 Section 72(1) provides:28

The court may in proceeding 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 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 each case.

The court is enjoined to make a just and equitable order based on the circumstances of each case before it. This equitable order is in relation to the settlement and not the redistribution of the property. On the other hand, section 73 of the MCA deals with the general powers of the court in respect of financial provisions for spouses in proceedings for maintenance, custody and property settlement.29 Section 73(1)(j) of the MCA is instructive as it authorises the court to discharge a property settlement order which was made pursuant to section 72 of the MCA if the spouse in whose favour the property settlement order was made remarries, or upon any other just cause for doing so.30 Thus, by virtue of the provision of section 73(1)(j) of the MCA, the "settlement of property" as contemplated in section 72 of the MCA implies only the right to use and enjoy the property subject to the occurrence of an event(s).31 It does not imply a transfer of the ownership of the property from one spouse to the other except in cases where the court makes an

order of sale for the purpose of discharging a maintenance order. It is also noted that in most cases the courts would order a lump sum payment to a (female) spouse rather than settle or transfer a property to her.32 In Sodipe v Sodipe,33 there was no evidence of a direct financial contribution; the court, however, having valued the matrimonial property to be worth NGN10,000,000 (Ten Million Naira), casually ordered a lump sum payment of NGN200,000 (Two Hundred Thousand Naira) to a wife who had spent 43 years in the marriage.34

On the other hand, the MWPA establishes the doctrine of separate property between the spouses. The doctrine of separate property recognises the separate rights of the spouses to acquire and deal in property during the subsistence of their marriage as if they were not married. The ownership of property is ascertaiined in most cases in terms of the strict principles of the law of property, except where a spouse can by evidence show some financial contribution to the other spouse's property, which could entitle her to some proprietary interest.35

The MWPA vests married women with separate ownership rights to property36 as if they were feme sole.37 By virtue of its provisions, the rights of women married under the MA to acquire, hold, alienate and dispose of property by will without interference from their husbands or any trustee are recognised.38 With the operation of the MWPA, any personal (movable) or real (immovable) property acquired by a woman before and after her marriage is treated as her separate property.39

Section 17 of the MWPA empowers a spouse to commence an action in court for the determination of his or her title to or possession of property where there is a dispute between the husband and wife.40 In such a case, the judge is enjoined to make an order as he thinks fit in relation to the disputed property.41

Married women's contractual rights in respect of their separate property are

recognised, and they bear all entitlements and liabilities arising therefrom.42 It is noted, however, that the equal recognition of the property rights of spouses in statutory marriages is not extended to spouses married under customary law or Islamic law.43 Section 1(2) of MWPL provides: "Nothing in this law shall affect the capacity, property or liabilities of any persons married solely in accordance with the requirements of customary law."44

It is emphasised that the MWPA does not regulate the redistribution or readjustment of matrimonial property between spouses on the dissolution of a statutory marriage.45 The primary aim of the MWPA in respect of disputed property between spouses is for the court to determine questions of ownership of property between spouses as it thinks fit.46 Whenever there is a property-related dispute between spouses, therefore, Nigerian courts interpret the provisions of the MWPA strictly to determine the extent of a spouse's interest in the property of the other spouse.47 For a spouse to succeed, he or she must prove having made a direct financial contribution to the purchase or development of the disputed property based on the ordinary rules of property law.48

3 Judicial approaches to the property rights of spouses at divorce

In applications brought before courts pursuant to the MWPA/MWPL and the MCA, Nigerian courts adopt a strict property rights approach in the determination of spouses' entitlements to property. In a few cases, however, perhaps arising from the relief sought by the party, the courts have also adopted an equity/trust approach in the determination of the property rights of spouses at divorce.

3.1 The Strict Property Rights Approach vis-à-vis the Equity/Trust Approach

"Equity", in the comprehensive sense of the term, is grounded on principles such as "fairness", "justness" and "right dealing" that regulate the relationship between human beings.49 It also implies that equal and impartial justice should be effected between parties with contradictory entitlements

and human rights, a set of laws developed by the English Courts of Chancery prior to 1873.50 It is a part of the law that is employed to regulate the enforcement of the claims of parties under the administration of trusts, mortgages, common law rights, that the common law did not provide for, so as to cure the deficiencies of the common law, through the ordering of definite and precautionary remedies.51 However, a trust could be described as a relationship where a trustee is forced in equity to hold real or personal property, via either lawful or "equitable title", for the use of the legatees (ces tui que trust) or any other entity in law, in such a way that the actual benefit of the assets goes to the legatees or "other objects of the trust".52 Equity and trust laws were made applicable in Nigeria through the status of General Application of 1st January 1900.53 A trust could be private, public or charitable. It could also be expressed, implied or resulting and constructive.54 For the purpose of this article we shall concentrate on a resulting trust.

A resulting trust is a relationship where an individual keeps an asset for the profit of another, which is deducible by a court in certain cases where a person transfers an asset to another and gives the recipient lawful ownership of the asset, without the intention of giving the recipient either equitable or beneficial interest in the asset.55 Most times a donor transfers the legal ownership of a property to a person who did not contribute to its acquisition to preserve. It is taken that the asset will revert to the benefit of the transferor or the person who financed the property.56 It is "resulting" because the ownership will revert to the donor. This is based on a presumption of the intention of the transferor by the court. A resulting trust could be "automatic" or "presumed".57 A trust is presumed to be resulting in instances where the intent of the trust is assumed or implied from the events surrounding the transferor during the transaction; for instance, where "a property is purchased or a legal title made in the name of another or other persons".58 While resulting trusts automatically transpire in conditions where there is no presumption of the intent of the transferor, nevertheless they are assumed to occur as a consequence of the exigencies of the case.59

However, it is possiblle to identify circumstances where resulting trusts can be assumed. First, where there is a failure of an express trust. This can occur where a donor transfers property to a trustee and the trust fails, leading to the uncertainty of the object of the trust.60 Thus, the assets will revert to the donor. A resulting trust can also come into existence where the beneficial interest in the expressed trust is not completely distributed.61 That is, there are surplus assets after the distribution of the properties to the beneficiaries, or in a situation where there were several donations and there is a residue after all the beneficiaries have taken their shares of the asset.62 Therefore, the remainder will revert to all the donors.

Of interest to this exercise is where an asset is purchased in the name of another person. There is either a presumption of a trust to the procurer or of advancement.63 The principle of the presumption of a trust to the procurer was laid down in the case of Dyer v Dyer,64 where the court held that a person whose name was used to acquire an asset without his or her contribution to the purchase price is a trustee to the financer of the asset. This dictum was followed in Coker v Coker.65 Also in Ukata v Emembo66 the defendant by a written agreement promised to lease a property in Aba to the plaintiff after he had acquired an assignment from the Crown lease.67 Consequent to the agreement, the plaintiff paid the total price of NGN2,000 (Two Thousand Naira) to the defendant, on expiration of the lease.68 The plaintiff also paid the lease renewal fee to defendant in which the defendant acquired in his name. The court held that since the plaintiff had paid the purchase price, the defendant was holding the asset for the benefit of the plaintiff. Therefore, the defendant was a trustee to the plaintiff.69 This is the strict property rights approach adopted by the Nigerian Court.

The presumption of advancement can arise where an asset is bought in the

name of a person who is in an intimate relationship with the purchaser such as a nuclear family relationship and a person in loco parentis. In these scenerios the asset is regarded as a gift and the resulting trust is invalidated.70 However, the presumption of advancement can be refuted through evidence gleaned from the acts or declarations of the parties before or during the acquisition of the asset.71

A presumption of advancement can also occur where a father procured assets in the name of a child,72 or where a husband bought a property in the name of a wife, or a fiance in the name of a fiancee.73 In Roberts v Wilson the deceased purchased the property at 47 Balogun Street, Lagos in the name of his wife in 1884.74 In 1960 the Lagos Executive Development Board acquired the property compulsorily. In trying to rebut the presumption of advancement the plaintiff claimed that they were co-owners of the property and entitled to be paid compensation because their father collected rent on the property while he was alive. The court held that collection of rent by the donor was insufficient to rebut the presumption of advancement in favour of the wife.75 Alternatively, if a wife buys a property in the name of her husband, this will be held as a resulting trust in favour of the wife because she is not expected to advance such gifts to her husband.76 In addition, where a person who is in loco parentis to another acquires a property in the name of that child, evidence will be adduced to rebut that fact.77

The strict property right approach requires a court to determine legal ownership by way of documentary evidence. In order to sustain a claim for beneficial interest in property, where legal title to the property is in the name of one of the spouses, this approach requires the claimant to provide evidence of a direct financial contribution to the acquisition of the property. Under this approach, therefore, In the determination of the legal title to property or beneficial interest in property, the indirect financial or non-financial contributions of a spouse to the acquisition of the property are not taken into consideration by the court.

It is noted that, in relation to cases which have been brought pursuant to section 17 of the MWPA for the determination of the property rights of

spouses, the courts have adopted the strict property rights approach.78 Even where a spouse has approached the court for an interest in property pursuant to section 72 of the MCA, the court has often placed reliance on documentary evidence and proof of a financial contribution.

On the other hand, the equity/trust approach requires the court to apply trust and equitable principles in the determination of the property rights of spouses where a reliance on documentary evidence or proof of direct financial contribution to the acquisition of property will lead to an unfair result on the part of the spouse without a legal title.

It is the court's responsibility before making a property order to determine the extent of the interests which the spouses have in their respective property, whether individually or jointly owned. In the absence of an agreement or a declaration of trust where the legal estate is in the name of one of the spouses, courts are encouraged to apply trust and equitable principles to the property relationship between spouses to determine their beneficial entitlement.79

In Mueller v Mueller,80 for instance, the court having reached the conclusion that the property in dispute was substantially financed and constructed by the husband stated:81

The finance for the land and the construction definitely came from the petitioner and, since they were married, it is only fair that the entire property be partitioned… .

Similarly, in Oghoyone v Oghoyone82 the Court of Appeal expressed the view that it would be unconscionable to allow a spouse to claim exclusive possession of a matrimonial property, especially where the court can by the conduct of the spouses, either express or inferred, determine the shared intentions. According to the court in Okere v Akaluka,83 it would be most unconscionable to deprive a woman and her children of the right in a property to which she contributed substantially in regard to its acquisition and development.84 The court also expressed the view that the indirect

contributions of wives to the matrimonial property should grant them a beneficial entitlement to the property on the basis that "… it was the performance of their functions as wives that enabled their husbands … to perform theirs."85

While it is noted that these judgements favoured the need for the recognition of a wife's indirect contributions to matrimonial property in certain cases, it is in only a limited number of cases that the courts have, through the ingenuity of counsel, sustained a claim for matrimonial property rights based on the equity and trust approach.86 The authors therefore argue that the Nigerian courts should depart from the strict property approach and adopt a more flexible approach. Where a husband purchases a property in his own name while his wife is a stay-at-home wife or in circumstances where the wife has a career outside the family and spends her income on home-making or paying school fees or rent or food for the family while he invests his earnings in property, that husband should be held a trustee for the wife, because the wife has indirectly contributed to the purchase price of the property.

4 The status of the property rights of Nigerian women at divorce

The relationship between spouses in marriages is is founded on the principles of equality and justice. The notion of equality in this context implies the need for an equal right to resources and opportunities within marriage. The preamble to the Constitution of the Federal Republic of Nigeria, 1999 (hereafter the CFRN)87 states clearly that the Federal Republic of Nigeria is built "on the principles of freedom, equality and justice" for all persons. It is also noted that in Nigeria the constitutional provision on equality "represents an important expansion in the area of legal protection for human rights."88 In the Nigerian legal system, therefore, "[e]quality before the law is achieved where persons in similar circumstances are treated similarly …,"89 where men and women have equal opportunities and are given equal conditions for the realisation of their full potential. "Equality" is thus the parameter adopted by Nigerian society to treat differences. It ensures that the law is not unfairly used to the advantage or disadvantage of certain persons and that similar rules are applied to similar situations.

In Nigeria, women in marriages do not possess equal status with men.90 They are treated as inferior to their male counterparts.91 The root of this discriminatory tendency lies in customs which amongst other things discriminate against women in terms of their property rights,92 despite the provisions of section 18(3) of the Evidence Act,93 which states:

In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience.

For instance, in Mojekwu v Mojekwu the Court of Appeal declared the "Oli-ekpe" custom of the Nnewi people of Nigeria to be discriminatory. This custom allows a brother to inherit his late brother's estate to the exclusion of the latter's wife and female children.94 Tobi JCA queried the "Oli-ekpe" custom and considered it to be repugnant to natural justice, equity and good conscience, and inconsistent "with equity and fair play in an egalitarian society … where the civilised sociology does not discriminate against women."95 It is noted that the repugnancy issue was raised and decided suo motu by the Court of Appeal. On appeal to the Supreme Court, the apex court did not allow the pronouncement on the "Oli-ekpe" custom to stand. It proceeded to disapprove of it as unwarranted in the circumstances of the case.96 It held that "the court below was in error to raise, deal and decide the issue concerning the repugnancy of the 'oli-ekpe' custom of Nnewi suo motu without hearing from the parties."97 In Ukeje v Ukeje, however, the Supreme Court pronounced a similar custom to be discriminatory and unconstitutional and upheld the right of a girl child to inherit properties.98

The CFRN declares its supremacy in section 1(1) in the following words:

This Constitution is supreme and its provisions shall have binding force on all

authorities and persons throughout the Federal Republic of Nigeria.

It proceeds, in section 1(3), to declare that:

If any law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of its inconsistency be void.

Therefore, any law (whether customary or a law made by any legislative enactment) which is discriminatory in nature and disentitles a citizen on the ground of gender to any right which ordinarily and necessarily accrues to such a citizen cannot withstand a constitutional challenge. To this extent any "culture that attributes superiority to one sex over the other exposes the sex that is considered inferior to various forms of discrimination."99

Furthermore, in section 42(1)(a) of the CFRN, every citizen, whether a male or a female, has the right not to be discriminated against on the grounds of gender and religion, amongst other things, and must not100

… be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other … sex, religions … are not made subject.

The right to be free from discrimination based on gender has also been addressed in several international, regional and municipal instruments which promote equality of the sexes. Notwithstanding this constitutional provision, Nigerian women are still discriminated against in areas such as inheritance and succession, family and child-care responsibilities and the relegation of the woman's role to domestic duties in the family.

Section 18(3) of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act101 urges the Nigerian government to take reasonable steps to eliminate all forms of discrimination against women and to protect their rights as contained in international conventions.

The equal responsibilities of spouses in marriages are emphasised by article 23(4) of the International Covenant on Civil and Political Rights.102

These equal responsibilities of men and women are also recognised during marriage and at divorce. This simply means that the cultural practice of relegating a woman's position to domestic duties at home and to the upbringing of the children is a violation of the rights of women. Thus, parental responsibilities between men and women during marriage and at divorce are equal and joint in relation to their children; and these they must discharge to the best of their abilities. There should be no discrimination in this regard.

Similarly, article 16(1) of the Convention on the Elimination of All Forms of Discrimination against Women (hereafter the CEDAW) requires State Parties to take all necessary steps to eliminate discrimination against women in marriages and family relations.103 It emphasises the equal rights and responsibilities of spouses during marriage and at divorce.104 Of much importance is the provision of article 16(1)(h) of the CEDAW, which recognises the equal rights of spouses in relation to―

… the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

Unfortunately, Nigeria is yet to domesticate CEDAW. An attempt to domesticate CEDAW via the Gender and Equal Opportunities (GOE) Bill, 2016 met stiff religious and cultural resistance and therefore it is yet to be passed.105 The proposed bill, if passed, will empower women to acquire and own property, benefit from their late husband's estate, and provides for her right to the choice of nativity and identity at divorce. However, the bill has no provision for property right at divorce.106

Article 7(d) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa107 encourages State Parties amongst other things to recognise the equitable rights of spouses to share in the joint property which results from their marriage.

Another law protecting spouses in Nigeria is section 9 of Violence Against Persons (Prohibition) Act (VAPP), a gender neutral act which imposes on

the perpetuators, instigators, accessories, abettors, counsellors, or supporters of the forceful expulsion of a spouse from a home a penalty ranging from one to two years of imprisonment, with or without a fine ranging from NGN 200,000 to NGN 300,000 (two hundred thousand to three hundred thousand naira).108 Unfortunately this law is applicable only in the Federal capital territory in Abuja, because it is a criminal matter under the residual legislative list of the Constitution of Nigeria.109 This implies that for it to be relied on, States will have to legislate on it.

Notwithstanding the above provisions, the inherent discrimination between women and men continues to rear its head in the property rights of spouses at divorce.110 The strict application of the law on the settlement of property in Nigeria has in most cases prevented women from claiming a beneficial entitlement to their husbands' property at divorce.111 They are, thus, left uncompensated for reasonable losses suffered or which they might be capable of suffering at divorce.112 Nigerian women are also unrewarded for all the indirect financial contributions which they made to the purchase or development of any property directly linked to their male spouses.113

The woman's role as a homemaker and her obligations towards the welfare of the family are not taken into consideration in determining the question of whether they are beneficially entitled to any property. The reasons for this are not farfetched, as the extant law does not empower the courts to redistribute the property of spouses or to alter their property interest at divorce on a just and equitable basis.

To this day, the social reality of the domestic and mothering roles of wives

in Nigeria means that they remain in a totally dependent position with no rights in matrimonial property if the marriage ends, unless they can show evidence of a substantial financial contribution to the purchase of such property.114 The Nigerian position is far different from that which obtains in a country like England, where the wife's domestic service is one of the factors to be considered by the courts in the redistribution of the spouses' property at divorce. A succinct examination of the position in England is therefore desirable.

5 The property rights of spouses under English law

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.118 At that time divorce proceedings were mostly available to men.119 In the 1870s when husbands perpetrated domestic violence against their wives who were working, since divorce was economically unrealistic to these career women, the magistrates' courts were empowered to grant separation orders with maintenance to significant others who were victims of such violence, and to grant judicial separation.120 Several attempts to amend the law to reflect equal divorce rights to both spouses were abortive.

However, from the early 20th century the right of women to institute divorce proceedings began to gain ground, resulting from an increase in agitation by plebeian wives and the drive to mitigate the effect of divorce on women.121 Divorce on grounds other than adultery seemed to be an exclusive reserve for men between 1920 to 1930s, when there was an increase in the promotion of women's autonomy.122 The inequality in divorce litigation was further reduced by the advancement of legal aid to wives who needed such services for divorce proceeding in the 1950s.123

The ownership of property is determined in accordance with the strict principles of the law of property under English law,124 and except where a spouse can establish by evidence that he or she made some financial contributions of some kind to the acquisition or development of the assets, the court will grant him or her no proprietary interest in the family assets.125 Hence, the system of the complete separation of property operates in England. Should one spouse, therefore, buy a property for their common use, the other spouse lacks any proprietary interest in that property. Notwithstanding the adoption in England of the system of the complete separation of property, there is a radical departure in English law and case law from the earlier presumption that the exclusive ownership of property purchased during a marriage was vested in the spouse who had purchased the property.126 English law presently take into consideration a wife's contribution towards the upkeep of the matrimonial home in determining her entitlement to property at divorce.127

The Matrimonial Proceedings and Property Act (hereafter the MPPA)128 placed the spouses on an equal footing and gave the court the wide discretion to adjust their property rights by a shift of emphasis―

… from maintenance of a wife by her husband to a process of readjustment of the whole financial position of the spouses to meet the new situation brought about by the termination of marriage.129

In this regard, English law shifted its focus from "maintenance" to the "financial readjustment" of spouses at divorce.

The English court is vested with wide redistribution powers by virtue of the Matrimonial Causes Act of 1973 (hereafter the MCA 1973).130 It is noted that sections 23 and 24 of the Act protect the disadvantaged spouse (most often the wife) at divorce from any undue financial hardship which she may suffer. Section 23 of the Act empowers the court to make financial provision orders for a spouse131 in order to adjust his or her financial status at divorce. On the other hand, section 24 of the Act empowers the court to make property

adjustment orders in relation to the property rights of the spouses in order to adjust their financial positions. A property adjustment order includes: a property transfer order;132 a property settlement order;133 a variation of nuptial settlement made on the spouses;134 or "an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement".135 English courts can also order the sale of a property for the purpose of meeting the financial obligations of a divorced spouse, as conferred on the court by section 24A of the Act.136

The orders made pursuant to sections 23 and 24(1)(b)-(d) of the Act are for the purpose of protecting the disadvantaged spouse from any undue hardship, pending such time as he or she becomes financially readjusted, remarries or dies.137 However, the powers of the English courts to vary or discharge orders for financial relief do not affect the provision of section 24(1)(a) of the Act which empowers the court to order a spouse to transfer his or her property to the other.138 The issue of "remarriage or death", which is considered as a basis for the variation or discharge of financial relief in favour of a spouse, does not affect a court order which is made pursuant to section 24(1)(a) of the Act. Simply put, section 24(1)(a) of the Act makes provision for the unconditional transfer of property from one spouse to the other spouse.139

Of importance is section 25 of the Act, which deals with the statutory guidelines for the exercise of the court's wide powers of redistribution. This section contains matters which the court is enjoined to consider in the exercise of its powers to make financial provisions and property adjustment orders.

Section 25(1) of the Act explicitly states that the welfare of the child shall be considered first. The onus is on the court under this subsection to determine the manner in which the redistribution order will be made taking cognisance of the circumstances of each case.140 For instance, rather than make an order for a periodic payment to a spouse, the court could exercise its discretion to make a clean break order.141 The rationale behind this order is to avoid "ongoing dependency following divorce".142 This "enables the parties to achieve financial independence after divorce, rather than to impose continuing liability"143 on them.144

In making a redistribution order, section 25(2) enjoins the court to consider the following:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit … which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

The above matters for the court's consideration are not listed in order of priority and the weight to be given to each of them would be contingent on

the proper exercise of its discretion and the peculiar facts of each case.145 It is noted that section 25(2)(f) of the Act enables the court to give recognition to the spouses' financial and non-financial contributions to the family's welfare.146 By this provision, a wife's contribution as a homemaker, caregiver, wife and mother is given consideration equa; to a husband's financial contribution.147 It was clarified by Baronness Hale in Miller v Miller; McFarlane v McFarlane148 that the term "contribution" as used in section 25(2)(f) of the Act does not imply financial contributions "to the parties' accumulated wealth, but contributions to the welfare of the family"149 and, in that regard, spouses should be seen as contributing to the best of their abilities.150

The recent case of Wyatt v Vince151 is illustrative of the position of the rights of a spouse under the English law. In the instant case the couple were married in 18 December 1981. Vince accepted responsibility for the daughter Wyatt had had before the marriage. In May 1983 they had a son Dane and they managed to survive on a social grant.152 In 1991 the husband instituted an action for the custody of the two children, but custody was awarded to the wife with an order of contact with the children for the husband, and nominal periodic payments of child benefits to the wife.153 They were separated in 1984 and divorced in 1992. Vince was not able to provide for the family but became rich after the divorce.154 In 2001 Dane, his son went to work and live with Vince and his second wife and son.155

However, in 2011 Wyatt made an application for an order of a lump sum and that of a provisional payment by her husband at the High Court. The husband cross-applied to the court to strike out her application on the grounds that the applicant has no reasonable grounds for bringing and defending the claim, and secondly that her application was an abuse of court process.156 Vince's cross-application was dismissed by the deputy judge, who awarded her the sum of £31,250 to be paid into her solicitor's

account for 4 months, amounting to £125,000.157 Dissatisfied, the husband appealed to the court of appeal, where the order of the deputy judge of the High Court was struck out and the wife was ordered to refund £36,677 to the husband.158

The wife appealed to the Supreme Court. Her appeal raised the following questions: whetherthe court had the jurisdiction under financial order Rule 5.4 of the family rules, or had the court of appeal acted in error. If so, then what was the apposite pronouncement to be made in the light of this circumstance, and was the court correct in setting aside the sum of money awarded, or in ordering the refund?159 The supreme court concluded that the court of appeal had been in error when it struck out the wife's application and that there was no place for summary judgement in divorce proceedings.160 This was because the court was of the opinion that orders for financial distributions and property adjudgment had no time limit in divorce cases,161 since sections 23(1) and 24(1) declare that orders may be made on granting a decree of divorce "or at any time thereafter".162 Thus the wife's delay in instituting the action was irrelevant. In addition, the supreme court also relied on section 25(2)(f),163 which provides that in determining financial and property award in divorce cases that the court should consider "the contributions which each of the parties has made … to the welfare of the family, including any contribution by looking after the home or caring for the family."164 In the instant case the wife in her argument relied on her care of Dane and Emily between 1984 and 2001 and thereafter for Emily, without substantial financial support from the husband, and taking care of both children in her state of poverty.165 The supreme court agreed that the wife's suit had a possibility of success and therefore reversed the decision of the court of appeal and referred the case back to the family arbitration court for trial.

In the determination of the property rights of spouses at divorce, there is a benchmark of equal division.166 Under English law it is presumed that both spouses contributed to the family's welfare to the best of their ability.167 Spouses' conduct or the assessment of their contribution does not affect

financial claims.168 The quantum of the contribution of spouses is brought into focus only in exceptional cases and assessed only if there was such disparity in their contributions that it would be inequitable to disregard that in granting financial claims.

On the extent of the English courts' statutory powers to make financial provisions and property adjustment orders at divorce, it has been stated that the discretionary powers of the English courts are almost limitless, albeit the orders of the courts must come within the statutory powers of the Act.169 It is equally observed that "the statutory exercise must in each case be seen as an attempt to achieve a fair, sensible and practical solution to the financial problems of the parties following the marriage breakdown with first consideration being given to the children."170 In view of the extensive powers of the English courts to adjust the property rights of spouses,171 the need to make an enquiry into the precise interest that each spouse has in the matrimonial home or other assets has been obviated.172

6 A case for a redistribution order in Nigeria

It is a truism that female spouses perform most of the family's domestic chores, whether or not they are in full-time employment,173 and they contribute hugely to the family's welfare.174 Their responsibility towards discharging their domestic services at home often limits their employment opportunities and the hours they can put into labour.175 As "mothers, they are more likely than single women to work part time",176 which is likely to affect their earning capacity even after they have returned to full-time employment.177 Even women who work full-time also sacrifice their earning potential in order to save their marriages.178 Asiyanbola holds the opinion that as women are expected to raise their children and keep house in addition to pursuing their vocations, they may not have the time and vigour

to devote to careers that men have.179

Currently, reality of fmily life in Nigeria reveals that even women who work are requested by their husbands to invest their wages in aspects of home making such as feeding the family, and paying the children's school fees (including those of children who go to school abroad at a fee of up to $20,000 per annum) the rent and the bills, while the men invest their earnings on capital project such as property and development. Unfortunately, the woman ends up with no savings. We therefore argue that the court should change its approach in deciding property rights. The lists in this section should give rise to resulting trust. In certain cases, women are requested by their husbands to be full-time housewives. That is, they must not have careers outside their homes. However, at divorce these women are seen not to have contributed to the matrimonial property and are asked to move out since they cannot adduce evidence of having made a financial contribution of the property. Hence the authors' opinion that the Nigerian marital property laws should be amended to reflect the rights of such women.180

Garuba and Ezekiel are of the opinion that since more women in Nigeria are getting more financially empowered they should be stripped of the benefit of "presumption of resulting trust and advancement, which operates to favour women".181 But they fail to take into account the unquantified or the quantified contributions of women towards their families, while the men are expected to spend on capital projects, as stated in the preceding paragraph. They also fail to tell us that when men are looking for wives in Nigeria, they look for career women who will not be a liability to them but will instead share the financial burden (50%/50%) of the home with them. Garuba and Ezekiel also fail to tell us how when our stay-at-home mothers engage in petty trading they sell off their jewellery and expensive clothing to supplement the upkeep money and pay the children's school fees. Their assertion is therefore in error. It is out of touch with the reality of the life situations of families in Nigeria and unfair to the immeasurable fiscal non-financial contribution of women to family care to enable the men to acquire and develop property.

It is noted that "marriage not only leads to the acquisition of assets, but also to the loss of assets – namely, the homemaker's earning capacity, job skills and professional contacts".182 Most of the domestic duties discharged by

the homemaker are essentially to the benefit of the husband.183 At divorce, the male spouse takes all the assets at the expense of the female spouse.184

Women are thus exploited in the marital relationship.185 This is the result of the inequality which exists in marriage, which arises from the high earning capacity of men vis-à-vis the traditional roles of women as wives, mothers, carers and homemakers.186

The duration of the marriage, the responsibilities of the spouses during the subsistence of the marriage, their future responsibilities after divorce, and the need to prevent a situation where one of the spouses will be left in real need while the other is in a better financial state, all of these issues should constitute special circumstances for the exercise of the court's discretion to redistribute the property of spouses in a bid to do what is just and equitable.

The cost of performing the role of a homemaker and the financial and non-financial contributions of a spouse to the welfare of the family should be accorded proportionate to the monetary contribution of the other spouse.187 Both contributions must be treated as having equal economic value.188 The "creation of a scheme that promotes social and economic justice requires a fundamental recognition of marriage as an equal partnership in which the partners make contributions which are different in nature but equally valuable."189

There is a need to take the direct and in direct (financial and non-financial) contributions of women in the management of their families into consideration in the determination of the matrimonial property rights of spouses at divorce. It has been pointed out that such "indirect contribution is progressively being given prominence in other jurisdictions in the determination of disputes over matrimonial property."190 Non-financial and financial contributions to the maintenance of the family by a spouse (especially the wife), which include the performnce of her obligations as a homemaker and caregiver, the payment of bills and rates and attending to the business of the husband, which relieves the husband of some domestic and financial burdens and enable his business to progress, should be considered in an application for a beneficial interest in property which was

purchased solely by the husband during the subsistence of the marriage.

Himmelweit and Mohun191 argue that domestic labour, which includes the child bearing and rearing done by all housewives in their homes is not characterised as wage labour, because some capitalists believe that those tasks are not commodity-related, they are not profit oriented, and are viewed as emotional rather than economic. They do not involve exchange.192 They argue that domestic labour is private production for the direct consumption of those who are wage labourers, and that it is required for the continuous manufacture of "labour power".193 If the ability to work that is either "used up or wasted" is not in constant supply, or no probable fresh manual workers are born, then there will be a scarcity of labour power. Consequently, production will be impeded, and because there is a scarcity of a wage labourers there will be no profit.194

The work of a homemaker cannot be fully monitised. However, economists have estimated the worth of the average tasks of a housewife or a stay-at-home mother in India as Rs45,000 (forty-five thousand Indian Rupees) per month. If multiplied by twelve, the annual salary would be Rs540,000.00 (five hundred and forty thousand Indian Rupees).195 This implies that a stay-at-home wife who is considered to have not contributed to the building of a house would have earned a monthly salary of about NGN229,147.32 (two hundred and twenty-nine thousand, one hundred and forty-seven Naira, thirty-two Kobo) or an annual income of NGN2,749,599.51 (two million, seven hundred and forty-nine thousand, five hundred and ninety-nine Naira, fifty-one Kobo) annually in Nigeria.196 In the United Kingdom it was estimated that persons who do jobs like those a housewife does without payment earn about £24,645. The Nigerian Naira equivalent is NGN11,696,970.42 (eleven million, six hundred and ninety-six thousand, nine hundred and seventy Naira, forty-two kobo).197

In the United States of America, the average home maker range is as stated statistic for the United states is the average monthly salary is $2,000 with an annual salary of $24,006 of a homemaker NGN 8,692,456.85 (eight million, six hundred and ninety-two thousand, four hundred and fifty-six Naira, eighty-five Kobo).198 The authors therefore argue that it is unjust and inequitable to ask a housewife in Nigeria (who spends her life in the production of labour power consumed by her husband who is a wage earn) to show her financial contribution to the property acquired in the course of the marriage.

Accordingly, the paper argues that the non-financial and financial contributions of a wife to other expenses in the family should be considered in the redistribution of property at divorce. We therefore assert the Matrimonial Causes Act should be amended to reflect the equitable redistribution of the property of spouses at divorce.

8 Conclusion

This investigation has revealed that under Nigerian family law there are no provisions similar to the powers conferred on the English courts by section 25 of the MCA 1973. While what exists in England is the separation of property with judicial adjudication (discretion) to deal with "all the economically viable assets"199 of the two spouses at divorce, in Nigeria there is a complete separation of property without judicial discretion to redistribute the property of spouses. In relation to their property rights, women (in most cases) are discriminated against, and they suffer great financial disadvantage at divorce. This is because the court usually adopts the strict property approach, since there are no provisions enabling the redistribution of property at divorce. The investigation also reveals that women are cosidered to be non-contributors to the acquisition of the family's property, since they cannot aduce evidence of having made a direct contribution to the matrimonial property. They are therefore denied any right or benefit to it at divorce. In addition, the research has also exposed the fact that the English law provides that the indirect or non financial contribution of the wife must be taken into cosideration in the redistribution of the property. To butress the consideration of the indirect contribution of a stay-at-home mother, the research has estimated the monetary value of the work of a homemaker around the world, which reveals that a homemaker in Nigeria is worth between NGN 2,749,599.51 and NGN 11,696,970.42

annually, as stated above. This figures does not capture all the tasks carried out by a housewife at home.

Therefore, it is argued that a wife who has in principle earned such a wage at home has contributed immensely to the acquisition of the family property. Similarly, it is also just and equitable to assert that women who pay foreign and local school fees for the children of the marriage or feed and manage the family and visitors with their salary in Nigeria at the expense of their savings and comfort have contributed financially to the property that is held in the name of their husbands. Thus, it is argued that the husband should be held as a trustee in favour of the wife. Against this backdrop, the authors recommend that section 72 of the MCA section 72 should be amended to read as follows:

The court may in proceeding 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 settlement and [redistribution] 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 each case:

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List of Abbreviations