Divorce your wife, Lose your house! –Abimbola, CJ., Oyo State.


Suit No 1/169/2015

Judgment dated 28th February 2019

Coram: Abimbola, CJ, Oyo State

Marriage under Customary Law-Dissolution-Right of wife to share of property acquired during marriage

Issue: Whether a wife under Customary Law has right after divorce to share of property acquired during marriage

The Claimant and Defendant were married under Customary Law but the marriage was later dissolved.  While the marriage lasted, the Defendant purchased the land on which the buildings in dispute were erected. The buildings are a three bedroom flat in which the parties were living as family, together with their four children; and an uncompleted storey building.

Sometime after the dissolution of the marriage, the Defendant moved out of the premises. He thereafter sought unsuccessfully to recover possession of the premises from the Claimant who was still living in the property with the minor children of the marriage. Following the Defendant’s attempts to recover possession from the Claimant, she filed this action against the Defendant, claiming to be entitled in equal shares to the property, that the Court should order the property to be sold and the proceeds to be divided between the parties in equal shares.

The Court found that the Claimant’s contributions are that she was involved in the supervision of construction works on the buildings whenever the Defendant was not around; she contributed financially to the education of the children of the marriage by sometimes paying their school fees; she also performed other wifely duties.

Held: In determining a dispute as to ownership of property involving a husband and wife after divorce, the Court must not overlook the interest of the children of the marriage.

          When there is evidence that a property was acquired during the pendency of a marriage relationship under Customary Law, determining the ownership of the property transcends the strict principles of ownership of property but what is fair, just and equitable.

In determining the claim of a wife who contributed to paying children school fees and performed other sundry wifely duties which are not quantifiable in monetary terms, such a party would not be denied a remedy.

Even though the Married Women Property Act and Law do not apply to Customary Law marriages, the principles and philosophy of those Laws can be of persuasive guide, especially since native law and custom is only applicable if not repugnant to natural justice, equity and good conscience.

When evidence shows intention of joint ownership such as when some receipts for some purchases in respect of the property bear Mr. & Mrs., the proportion of the parties’ contributions would not be material, it would not also be material in whose name the property stands and the Court will infer an equal share for each party.

When a wife has made contributions in the course of the marriage, her accrued rights are not only possessory but can also be perpetual.

In the event, the Court will presume a resulting trust from both parties in favour of the children of the marriage, the divorced wife would remain in possession of the house for as long as she remains unmarried to take care of the children while the uncompleted building would be sold and the proceeds shared equally between the parties.

A man who marries a woman and builds a house during the marriage risks losing that house if he divorces the woman who has children for him and lays claim to joint ownership unless she leaves the matrimonial home of her own volition.

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