Divorce your wife, risk losing your building

For any man that divorces his wife, there is a risk of losing their matrimonial home to her especially if the marriage is blessed with children. Women have a right to the matrimonial building; that is a house built during the pendency of the marriage. A woman that has children for her husband and had married him before a house is built has a right to live in the house with her children even in the case of divorce under the provisions of the Married Woman Property Act 1882, though many are not aware of this enshrined right.

The belief that patriarchy is so entrenched in the Nigerian system and women have no rights even under the law has been proved to be an erroneous one, majorly propounded by those ignorant of the rights provided under the law.

The provisions of the Married Woman Property Act 1882 formed the basis of the pronouncement of the Chief Judge of Oyo state, Justice Munta Abimbola on Friday in a property suit between a divorced couple; Toyin Arajulu, formerly known as Mrs Toyin James and her former husband, Mr James Monday.

The court had held that: “a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman of her own volition leaves the matrimonial home.”

Justice Abimbola while ruling on the matter had emphasised what is known in law as the “palm tree justice”, which indicates that it does not matter in whose name the property stands or who pays what and in what proportion as determination of such matters transcends all rights; legal or even equitable but simply what order is fair and just in the circumstances of the case, citing the case of Home Vs Home (1962) 1 WLR 1124 at 1128.S 17 Married Woman Property Act 1882, which is a statute of general application.

Toyin Arajulu had filed the suit against her ex-husband, Monday James who she married under Native Law and Customs in 1997 and in the course had four children and she had claimed that while married to him, they had jointly  put resources together  and built two flats of three bedroom each at Ayedun in Akure, Ondo state and one plot of landed property at No 7, Fadana Biala Estate, Olodo in Ibadan where they built a three bedroom flat and a storey building which is still under construction before their divorce in July 2014.

She averred that before the divorce, her husband had moved out of their matrimonial home in Olodo but only comes to try to forcefully eject her and the children usually accompanied by thugs who attacks her and her children, adding that on August 15, 2014, one of her children, Bidemi James was wounded in one of the episodes of attempted violent eviction and the sum of N530, 000 from her business taken by her ex-husband and his accomplices.

She claimed that he has concluded to sell off the joint property without her consent and had continued to victimize her and the children, asking the court for a declaration that the property is jointly owned by the two of them and an order that the landed property with the three bedrooms flat and uncompleted storey building be sold and proceeds divided equally between them and an order of perpetual injunction restraining James from harassing her and the children.

In his counterclaim and defense, the ex-husband stated that when he bought and constructed the Akure property, his wife was a full housewife and had no contribution to the project, adding that the situation was the same for the Ibadan property as his wife only signed as a witness as she had no job and only depended on what he gives her to take care of the children when he travels out of the country. According to him, she was only trying to fraudulently take over his property, adding that her claims were vexatious, gold digging and an abuse of court process.

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He also asked the court to declare that the receipts of purchase his wife presented were forged and that she should vacate possession of the property which she had refused to give up despite service of statutory seven days owner’s intention to recover possession and a perpetual injunction restraining her from occupying the building.

Justice Abimbola while ruling on the case held that the land property at No 7, Fadana Biala Estate, Olodo, Ibadan together with the three bedrooms flat and uncompleted storey building is jointly owned by the two but on the second relief that both buildings be sold as requested by Toyin, Justice Abimbola held that: “I will not give such orders in the respect of the two buildings. Particularly Section 17 Married Women Law of Oyo state Cap 83, Laws of Oyo state 2000 gives a court the discretion as it thinks fits on the issues of the title of possession to the property.

“Section 18 also enjoins the court to treat such property as a joint property if the issue has to do with the maintenance of a matrimonial home. My order to this effect is that the completed three bedrooms flat on the land be retained as the matrimonial property and the four children are entitled as beneficial owners by way of a resulting trust created for them by their parents. The mother as long as she remains unmarried is directed to be in possession undisturbed in order to take care of her children.

“The uncompleted storey building is ordered to be sold by both parties and the proceeds divided in equal share. The half share shall go to the wife for the maintenance of the children. A divorced wife has no business being maintained,’ Justice Abimbola held.

The court also restrained James from harassing Toyin any further or disturbing the quiet possession of the property by her and the children, holding that, “the rationale is that a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman of her own volition leaves the matrimonial home.  Also, a divorced woman is not entitled to any maintenance allowance but maintenance of the children by way of settlement.”