When two individuals come together in marriage, especially if it is a statutory marriage, one of the things that this status bestows on the couple is co-ownership of property and chattel and the right of either party to inheritance of the property of the other in the event of death without a will.
Also, during the life of most marriages, most couples pool funds to acquire property and assets which they hope to enjoy together and probably pass unto their children at death.
However, not all marriages are, “till death do us part,” and when a couple part ways through a divorce or separation, what becomes of the property they have becomes an issue. Thus, settlement of property became a principal aspect to consider when a marriage hits the rocks.
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What is Settlement of Property?
Settlement of property refers to the sharing of property belonging to one or both of the parties for the benefit of one of the parties, or both, and the children of the marriage.
It is an ancillary matrimonial relief provided for by section 72(1) of the Matrimonial Causes Act. That is, the application for the settlement of property must be by either or both parties to an ongoing or concluded divorce matter.
There are no restrictions to the type of property for which settlement of property may be sought. The only requirement is that the property which is sought to be settled must belong to either or both parties to a marriage. Even a business solely owned by both parties can be settled. So also, personal or household property and real estate.
It is important to state here that settlement of property after a divorce in Nigeria is provided for by the Matrimonial Causes Act. This law carters only to statutory marriages in Nigeria. Thus, there is no provision for settlement of property for customary marriages and Islamic marriages in Nigeria.
Factors Considered in Granting Maintenance
When granting maintenance, the court considers what is just and equitable in the circumstances of each case⁴. The court considers several factors, including:
1. The means of the parties: This includes liquid cash, capital assets, shares in companies, investments, and contingent and prospective assets.
2. Earning capacity: The court considers the income and potential income of both parties.
3. Conduct of the parties during the marriage: The behavior of both parties during the marriage can influence the court’s decision.
4. Other relevant circumstances: These could include the social standing of the parties, their lifestyles, the age of the parties, the existence, and the number of children, and more.
There are no stated principles or formular for the settlement of property in Nigeria, the decision the court arrives at is entirely at the court’s discretion taking the circumstances of each case into consideration. Just like in granting maintenance, (another important ancillary matrimonial relief read about it here) the court exercises discretion in determining the right order to make in the interest of fairness and equity, and to ensure the financial security of the spouse and/or the children of the marriage.
Conclusion
The settlement of property and granting of maintenance are crucial aspects of matrimonial causes in Nigeria. They serve as means of ensuring fairness and financial security for the parties involved. It is important to understand these provisions and how they apply to your specific situation. Always seek legal advice when necessary. To chat with one of our lawyers, click here
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