A Comparative Analysis of Settlement of Properties after Divorce Between Nigeria and the United States of America
It is not surprising that our Courts are flooded with numerous petitions for dissolution of marriage. When things eventually go south and no room is left for recompense and reconciliation, divorce becomes the last resort. It is very common to hear women challenging their husbands to bring the divorce papers so that they can sign and walk away. This is the time you hear women shouting on top of their voices “I know my rights,” “you cannot fool me,” etc.
Unknown to most people, especially in Nigeria, divorce is more cumbersome than merely presenting some papers for a person to sign and walk out of the marriage especially when you are married under the Act (Court Marriage). It involves filing of processes and all other processes that are common with Court proceedings.
Perhaps, their understanding of divorce is drawn from what obtains in other climes, especially in the United States of America which many have come to know about through their movies and the experiences of celebrities like Tiger Woods, whose divorce story of how he lost a large part of his wealth to his former wife became a topic of global interest. The facts surrounding Tiger Woods’ divorce are sketchy, but from information obtained from internet sources, Woods used a second mortgage on his home at Jupiter Island as a means of paying his former Wife Elin Nordegren more than 50 million USD. That means that Woods made his Monthly mortgage payments to Nordegren and those payments began in 2010 and ended in January 2016. It is reported that Woods was sending Nordegren a monthly cheque of around 860,000 USD. So from this story and a host of other stories of what obtains in the USA, most people have the wrong impression that divorce generally gives a woman the right to receive half of her husband’s wealth after a successful petition for divorce.
On divorce, the United States is divided into common law and community properties states. Majority of these States are common law property states where the property acquired by one spouse during the marriage is solely owned by that person, unless the title deed of the property states the names of both spouses. What this means is that in the event of divorce, a party cannot part with any property that he/she neither acquired nor contributed to its acquisition either before or during the pendency of the marriage.
In community property states, properties for married couples bought while the marriages subsist are jointly owned by the couple and at divorce, one party cannot lay claim to the property. The Court will have to settle the properties in accordance with the provisions of the law. Community property States in USA include California, Arizona, Texas, Idaho, Nevada, New Mexico, Louisiana, Washington and Wisconsin.
For instance, Section 760 of the Californian Family Code provides that all property whether real or personal, wherever situated, acquired by a married man during the marriage while having his domicile in the State of California falls within the purview of community property. What this means is that once a married man acquires a property in California, that property is a community property and the property will be shared between the man and his wife at the time of divorce.
In Nigeria, the type of marriage contracted, whether customary or statutory determines how the property is to be shared. Sharing of property after divorce in Nigeria is usually contained in the Petition for divorce and the power of Court to share the properties is contained in Section 72 (1) of the Matrimonial Causes Act 1970 which provides thus:
“In proceedings under this decree, by order require the parties to the marriage, or either of them to make for the benefit of all or any of the parties to and the children of the marriage such settlement of property to which the parties: or either of them is entitled (whether in possession or reversion) as the Court considers just and equitable in the circumstances of the cases”
It is worthy of note that, due to the plurality of the Nigerian legal system, a number of legal principles guide the settlement of properties under different forms of marriage. Under customary law marriage for instance, a woman has no right to lay claims to any property after dissolution of marriage, even if she contributed to the acquisition of the property during the pendency of the marriage. What is common amongst most ethnic groups in Nigeria however is that after divorce, women move out with properties that were bought by their parents at the time of the marriage. They also part with properties which were solely acquired by them during the pendency of the marriage.
On the other hand, what obtains under statutory marriage, which also forms the crux of this article, is that the parties can apply for settlement of properties at the time of filing for divorce. In KAFI v KAFI (1986) NWLR 175, the Court held that a party claiming ownership of any property must have contributed to the purchase or acquisition of that property. The Court went ahead to emphasize in the case of ONABOLU v ONABOLU (2005) 2 SMC 135 that a party claiming ownership of the property must prove to the satisfaction of the court that he/she contributed to the purchase or acquisition of the said property before the court can grant the order sought.
One other contentious issue that arises at the time of settlement of properties is the issue of children. Where children are involved, the Court must go the extra mile to ensure that the interest of the Children is guaranteed and well protected. It is in the light of this that the court considers the ages of the children, the sources of income of both parties and their ability and disposition to take care of the Children before granting custody of the children to any of the parties. This is common in both the United States and Nigeria as far as divorce and sharing of properties/children of the marriage is concerned.
From the foregoing, in Nigeria and the United States of America, there are laws guiding divorce and settlement of properties with differences and a few similarities.
It is also deducible that the wrong notion that when a petition for divorce succeeds, a woman is entitled to half of the man’s wealth is false and misunderstood especially in Nigeria. Even in the United States of America, it is only in community property states that a woman is presumed to be the joint owner of a property purchased by her husband during the pendency of their marriage, even if she never contributed to the acquisition or purchase of such a property. That is to say that a woman cannot even marry a man who is very wealthy just to seek for divorce a few months later in order to claim properties that were acquired even before she was married. This is totally different in Nigeria where it is settled that a party seeking divorce can only part with the property that was acquired or jointly acquired by that party, and such a party must go even further to prove to the satisfaction of the Court that he/she acquired or contributed to the acquisition of that property.
Lastly, in my humble view, the law as it is in Nigeria is just and fair. People should not be given the impression that they stand to gain so much after divorce. Marriage is a union that is meant to last for a lifetime. However, if parties come to the conclusion that their marriage has broken down irretrievably and there is no room for recompense and reconciliation, they should be allowed to go their separate ways. But a party who for selfish reasons is desirous of quitting the marriage for no justifiable reason should only part with that which belongs to him/her and not what the other party has tirelessly worked to build, even if it was during the pendency of the marriage.
Nice. Very educative!
Thank you.