The provisions of the Marriage Property act 1882 being a Statute of General Application formed the fulcrum of a judgment delivered per Abimbola Munta J., Chief Judge of the Oyo State Judiciary early this month in a property suit involving a couple, now divorced, Toyin Arajulu and ex-husband James Monday at an Oyo State High Court sitting in Ibadan.
I am yet to get a Certified True Copy of the judgment but parts of the judgment I was able to read in the Saturday Tribune stated that the court held that a husband who marries a wife and builds a house during the pendency of a marriage stands the risk of losing that house if he later divorces the woman unless such a woman is the one that leaves the marriage of her own volition.
The judgment was reportedly backed by a principle known as “ palm tree justice’ which indicates that it does not matter in whose name the property stands or who pays what on the property and in what proportion as determination of such matters transcends all rights whether legal or even equitable.
Brief facts of the case was that while Toyin was married to James, they had put resources together and built two flats of three bedroom in Akure , they proceeded to get another plot in Ibadan where they built another bungalow of three bedroom while a storey building behind the bungalow was still under construction before the couple divorced in 2014.
The ex-husband’s Defence and Counter Claim was that when he bought the land and constructed all the buildings, his now ex-wife was a house wife and had no contribution to the project. The court pronouncement was that the property were jointly owned by the two and the woman with her children must continue to live there, considering the peculiar circumstances of the case before it.
Women especially had hailed the decision of the court as one that will begin to put men who will want to embark on a voyage of dissolution of marriage with the wives of their youth on the most flimsy excuses to take a seat and think deeply on what they stand to lose or gain. It also protects women and children in the marriage from being tossed into the streets from the home they had built together with the husbands. Since this Act is one of the Statutes of General Application (SOGA) adopted and used in the Nigerian legal system, it is a welcome development in protecting women who are married under the Act.
However, a closer look at the judgment is a clever attempt by the court at bringing a win-win situation in the event that any party to a marriage decides to end the union. Divorce is always filed under two suit titles. Husband Divorce (HD) or Wife Divorce (WD) which simply reflects the party that institutes the suit seeking a marriage dissolution.
Put simply, the judgment does not only seek to protect women but also to nip in the bud women who may decide to take undue advantage of the privilege the law provides and misuse same. Hence,“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.” As quoted in the report simply translates thus: that a man who institutes a divorce must bear in mind that property owned during the pendency of marriage are jointly owned by parties. And so he stands no chance of kicking his wife and children into the streets. On the other hand of the law, the woman enjoys this right inasmuch as she doesn’t leave the house of her own volition. In essence, where the woman institutes the divorce, then she stands a chance to lose the right as she cannot benefit from a marriage she clearly has no interest in again.
So what does this portend? A growing lack of trust between couples? An encouragement that couples should own respective properties bearing in mind the uncertainty of their marital journey? In a case handled by our firm very many years ago, the wife informed the court that the property in the marriage, that is their house, should be sold and shared between the couple as she contributed to its construction but the court held that there was no evidence (documentary) to prove her facts.
Divorce matters are intricate and sensitive and the court is smart to weave its decisions in such a way possibly to encourage couples to try to fix their marriages instead of rushing to court to get a divorce or to check the unwarranted intimidation of spouses who at the slightest provocation threaten their partners with divorce.
I am however worried that the law should again be reconsidered in a situation where a woman is being abused and she decides to leave the marriage, she may end up with nothing especially where she has put so much in the marriage because she left of her own volition. I am however consoled because the law is not static, being ever dynamic and that if the woman could prove to the court that her decision to leave the marriage was due to a history of abuse to her or infidelity on the part of the man has caused her untold pain and psychological trauma, the court will most definitely put into consideration the peculiarity of the case and the application of the law and ensure she does not lose out completely.
and then