Though divorce in the Nigerian society is treated like an aberration due to cultural and religious standards, it is a fact of life and has several legal implications though few people like to talk about it. There are many issues involved in divorce like what happens to the jointly owned properties and money because if not well handled, such issues can lead to serious damage and crisis on parties involved.
The first thing to consider when determining how jointly owned properties would be distributed between a divorced couple is whether or not there is a prenuptial or postnuptial agreement between them. A prenuptial agreement also called prenup, is a contract entered into by a couple before their marriage; it spells out how properties would be divided between them in the event of a divorce or death.
A postnuptial agreement is essentially the same thing but it is entered into by the couple, after their marriage.
In cases where a couple had earlier signed an agreement, the terms of the agreement would determine how the properties would be shared but in the absence of an agreement, the general rule for the division of properties between divorced couples is that all properties acquired by the couple, whether jointly or individually, are to be collated and divided equally between them.
This however includes only the properties acquired during the marriage such as real estate, cash or money in bank accounts, stock/bonds, cars and other valuables. All other properties owned by a spouse before entering into the marriage are presumed to be personal and separate, belonging to just that one spouse unless the couple agreed prior that every personal property acquired before the marriage is to become a joint property.
The distribution of properties is done equitably and fairly subject to the discretion of the court. In forming this discretion, the court may consider who shoulders higher responsibilities such as keeping custody and maintenance of the child. The parent that keeps custody of the child may likely be given the lion’s share of the marital property. In other instances, the property may be distributed equally by the Court.
In Nigeria, it’s customary for a wife to change her surname to her husband’s surname after their marriage, if she consents to do so and after a divorce, if both husband and wife consent, the wife can retain her former husband’s surname however, where the husband objects to his ex-wife’s continued use of his surname, he may apply to the court for an order of jactitation of marriage. This order of the court would prohibit the woman from continuing to portray herself as though she were still married to the man.
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