What the Court Actually Divides

Twenty-six years, and she can account for all of them.

She ran the shop from 1999 and the shop paid the school fees for three children, the hospital bills, the food and most of what the house needed while he was building it. His salary went into the building. That was the arrangement, arrived at by nobody in particular, and it worked.

The house is finished now and it is a good house. It is also, on the Certificate of Occupancy, entirely his, because he was the one who went to the Ministry and because in 2003 there was no reason on earth to put two names on a document.

At the first hearing her counsel asks for half the house. The other side does not dispute a single fact about the twenty-six years. They ask one question instead: which payments towards this house did she make, and where are they.

(A constructed illustration. The pattern is ordinary; the persons are not real.)

Nigerian law does not divide a marriage. It divides property — and it asks whose it was.

The single most important fact about matrimonial property in Nigeria is a negative one, and almost nobody entering a marriage knows it.

Nigeria has no community of property. Marriage does not create a common pool, does not vest anything in the couple jointly, and does not alter the ownership of anything either party brings in or acquires afterwards. Each spouse continues to own what each spouse owns. The wedding changes their status; it changes nothing on any title document, in any register, or in any account.

Many people assume the opposite, and they assume it for reasonable reasons. Jurisdictions Nigerians read about and watch on television do pool matrimonial property, some of them presumptively and equally. Nigerian couples describe assets as “ours” and mean it. And the ordinary conduct of a marriage — one purse, one household, decisions taken together — looks exactly like joint ownership from the inside.

None of that is title. When the marriage ends, the court begins with the documents and asks what has to be shown to depart from them.

The court’s power to depart from them is real. Under the Matrimonial Causes Act the court may order a settlement of property as it considers just and equitable in the circumstances. But that power has been read as a power to adjust interests, not to redistribute wealth at large: a party seeking a share of property held in the other’s name is generally required to establish a contribution to its acquisition, and the Court of Appeal made that requirement explicit in Mueller v Mueller (2006). The section does not authorise the transfer of one spouse’s property to the other simply because the marriage was long or its ending was unjust.

Property in a Nigerian matrimonial matter falls into five categories, and they behave so differently that treating them as one pool is the commonest source of disappointment.

Everything above converges on one word, and it is worth stating plainly what Nigerian law has and has not done with it.

Direct financial contribution is unambiguous: money towards the purchase price, the building, the instalments, the mortgage. It is proved by transfers, receipts, bank records and the testimony of those who received it, and where it exists in documentary form the claim is straightforward.

Indirect financial contribution is accepted in principle and harder in practice: paying the household expenses so that the other party’s income could be applied to the asset. This is exactly the arrangement in the cold open, and it is exactly the arrangement in a very large number of Nigerian marriages. Establishing it requires showing not merely that she paid for the household but that this is what freed his salary for the building, which is a matter of accounts kept over decades by people who were not keeping accounts.

Non-financial contribution — the running of a household, the raising of children, the years of unpaid work that made the accumulation possible — is where Nigerian law has moved least. Other common-law jurisdictions have brought it squarely into the assessment; Nigerian courts have been considerably more cautious, and a claim resting on it alone remains difficult. It should be pleaded, because the direction of authority in comparable systems is one way and Nigerian courts do consider it. It should not be relied on alone if anything else exists.

The practical rule that follows is unwelcome and true: the strength of a claim in this area corresponds to the quality of the records, and the records were made or not made twenty years before anyone knew what they were for.

The distributional effect of that rule should be named rather than left implicit. A separate-property system with a contribution requirement bears unevenly on whichever spouse contributed in forms that leave no receipt, and in Nigeria that is overwhelmingly the wife. That is a description of how the rule operates, not an argument about what it ought to be; what follows from it, for anyone in a marriage now, is set out in the final act.

None of the analysis above is universal, because the power to adjust property on dissolution is not the same in every Nigerian forum. Which forum applies is decided by the form of the marriage, exactly as Sibling 02 sets out for succession.

A marriage under the Marriage Act is dissolved by the High Court under the Matrimonial Causes Act, and it is that Act which supplies the settlement power discussed here, along with powers over maintenance and the children.

A customary marriage is dissolved according to the custom and through the customary courts, whose property jurisdiction is generally narrower and whose remedies are differently shaped. The return of bride price commonly features; a broad power to redistribute assets acquired during the marriage generally does not. A wife in this forum who wishes to assert an interest in specific property is often better served by an ordinary property claim, brought on trust principles in the appropriate court, than by anything the dissolution itself will produce.

Where Islamic personal law applies, dissolution and its financial consequences are dealt with in the Sharia courts under that system, which has its own provisions for the wife’s entitlements and its own firm rule that her property remains her own. It is described here as itself and is not analysed as a variant of the others.

The practical consequence is that two Nigerian women in materially identical situations, married on the same day to men of the same means, may have entirely different remedies available on dissolution because of the form each ceremony took.

Contribution is not measured by what it made possible. It is measured by what it can be traced to.

This essay is about a court. The useful part of it is about everything that happens before there is one.

Put both names on the instrument. Joint title converts the hardest category of claim into the easiest, at the cost of a properly executed and registered document. The funding sub-cluster’s essay on land sets out what the registry actually requires, and why the deed alone is not the transfer. Nothing else in this essay is worth as much.

Record contributions as they happen. Not a ledger — a habit. Transfers made by bank rather than cash. A note of what was paid for what. Documents kept by both spouses rather than by whichever one keeps documents. A marriage in which both parties can account for the acquisition of the principal assets is a marriage in which this question has an answer, whatever the answer turns out to be.

Declare the position in writing where the parties intend something other than the title. A written declaration that property in one name is held for both, or in defined shares, is evidence of the highest quality and it costs a solicitor’s afternoon. Agreements made in contemplation of a future breakdown occupy less settled ground in Nigerian law and should not be assumed to bind a court, but a declaration about the present ownership of an identified asset is a different instrument doing a different job.

Where property is intended for the children rather than for either spouse, settle it and stop arguing about it. A trust removes the asset from the contest entirely, gives it a legal owner who is not a party to the marriage, and provides for the children whatever happens between their parents. Sibling 09 of this cluster takes the instrument apart, and the seven-step architecture in the set-up cluster is the build.

Where the marriage is already failing, the steps change and the timing tightens. The property that will be argued about is the property that exists when the argument is decided, so preserving the position matters as much as pleading it: assets can be dealt with while proceedings are contemplated, and a court can be asked to restrain a disposition before it happens far more easily than it can be asked to undo one afterwards. Records should be gathered while they are still accessible, which in practice means before either party leaves the house. And the claim should identify the specific assets and the specific contributions from the outset, because a pleading that asks for a share of everything invites the answer that nothing has been proved about anything.

And say it early. Every step above is refused for the same reason — that raising it implies a doubt. The steps cost very little at the beginning of a marriage and are unobtainable at the end of one, which is a fair description of most instruments in this cluster.

The marriage was joint. The title was not. Only one of those is a document.