Assets Distribution and Spousal Support in Nigeria

Asset distribution and spousal support are central issues in most divorce cases in Nigeria. However, these are not automatic entitlements. Since the resolution of these matters is left to the court’s discretion, parties in a divorce must understand the principles that govern asset distribution and spousal support to present their claims effectively. This article will discuss the key factors that determine and influence asset distribution and spousal support.

WHAT IS ASSET DISTRIBUTION?

Asset distribution is the fair and equitable division of property between spouses after divorce. In Nigeria, the court has the authority to distribute the real or personal property of either party in a marriage to the other party or their children, as it seems just and equitable under the circumstances.[1] In Akinbuwa v. Akinbuwa,[2] the Court of Appeal held as fair, just and equitable the order of the trial court to settle the movable and immovable properties of the husband on his wife and children upon the dissolution of the marriage. It is important to note also that an order of asset distribution is a discretionary order as such, the court would consider certain factors before granting the order.

WHAT IS SPOUSAL SUPPORT/ALIMONY?

This is an allowance paid by one spouse to another by order of a court for the maintenance of the other spouse while they are separated, during divorce proceedings, or after they are divorced.[3] In Nigeria, the Matrimonial Causes Act does not use the term “alimony” but refers to spousal support as “maintenance.” The Act entitles both spouses to alimony in the event of dissolution of marriage.[4]

 In awarding spousal support or deciding asset distribution, the court will rely on certain factors,[5] some of which we would consider below:

FACTORS THAT DETERMINE AND INFLUENCE ASSET DISTRIBUTION AND SPOUSAL SUPPORT IN NIGERIA

The following are some factors that determine and influence asset distribution and spousal support:

1.     The nature of marriage: The type of marriage contracted significantly impacts a spouse’s entitlement to asset distribution and spousal support. Under customary law marriages, both the man and the woman can acquire property independently before or during the marriage. However, any property acquired by the man remains solely his, with exclusive rights and interests. Upon the dissolution of a customary law marriage, a woman cannot claim a settlement of property, even if she contributed to its acquisition, nor can she compel her husband through a court order to share the property. It is also important to note that while an order for alimony can be made in respect of both valid and void statutory marriages, this does not apply to marriages contracted under customary law or Islamic rites.[6] Only parties to statutory marriages are entitled to court-ordered asset distribution and spousal support.

2.     The time of property acquisition: In divorce proceedings, property subject to asset distribution is generally limited to property acquired during the subsistence of the marriage. Therefore, for a property to be considered in asset distribution, it must meet the criterion that the acquisition or full payment occurred during the marriage, regardless of when the property was formally transferred. Properties acquired before the marriage or after its dissolution are typically excluded from the asset distribution process.

3.     The contribution made towards the acquisition of the property: To ensure a fair and equitable division of the assets, the spouse is required to show that they contributed to the acquisition of the property. The partner who makes claims for settlement must establish the quantum of his or her contribution and give detailed particulars, including receipts of what he or she bought towards the building of the property. [7]

4.     The duration of the marriage: The longer a marriage subsists, the more assets a couple is likely to own collectively. The courts in dividing the assets will consider the length of the marriage and the properties acquired collectively and individually within the duration of the marriage to reach a fair and equitable distribution of assets.

5.     Interest of the children: In matrimonial proceedings, the interest of the child of a marriage is paramount. In determining the distribution of assets or maintenance in divorce, the court will consider what is just and equitable and in the best interest of the children of the marriage. In Nigeria, the court may consider the division of asset or property settlement for the benefit of a child below 21 years of age only unless the circumstances show that it is just and equitable even when the child is above 21 years of age.[8] Also the number of children living with one of the parties to the marriage can affect the quantum of alimony.

6.     Means of the parties or the earning capacity of the parties: The means of the party refers to the respective capital assets of the parties. While the earning capacity is the capital of each party as determined by economic and situational factors. The court will consider both before making a maintenance order or an order for asset distribution.

7.     Timing of the Claim for Asset Distribution and Alimony: In divorce proceedings, asset distribution, and alimony must be requested during the divorce process and not as an afterthought. A spouse seeking asset division or spousal support must make this request in a timely manner, as failure to do so may result in the forfeiture of such claims. This ensures that all relevant financial matters are addressed and resolved as part of the divorce settlement.

8.     Social Status and Lifestyles of the Party Seeking Alimony: The social status and lifestyles of the parties involved can significantly influence alimony decisions. Courts may consider the standard of living enjoyed during the marriage, the earning capacities of both parties and the role each spouse played in maintaining the marital lifestyle. A spouse accustomed to a higher standard of living may be entitled to a higher alimony award, while a lower status or lifestyle may result in a more modest settlement.

9.     The Conduct of the parties: The conduct of the parties during the marriage and towards each other can also affect asset distribution and alimony. In some cases, a spouse’s misconduct, such as infidelity or financial irresponsibility, may be considered by the court in determining how assets are divided or whether alimony is awarded. Courts may reduce or deny claims for spousal support if one party’s actions are deemed to have contributed significantly to the breakdown of the marriage.

CONCLUSION

 The court can grant the prayer for the division of assets and spousal support in divorce provided certain conditions are met. It is vital for any of the parties claiming such to consider the factors that determine the grant of these others. The factors discussed in this article are not exhaustive as such, to achieve the most favourable outcome in one’s application for spousal support or alimony, it is vital to seek the assistance of a family lawyer.

La Peritum Law Practice Family Law team can assist you in navigating the challenges of asset division and spousal support. Please email us via enquiries@laperitum.com or click here to contact us directly.

[1] 72 (1) of the Matrimonial Causes Act

[2] (2006) 6 NWLR (pt. 977) 627 at pp. 644 645) ;  Omolade O. Olomola, The Family Law and Succession in Nigeria, (Princeton & Associates Publishing Co. Ltd, 2021)  295.

[3] Black’s Law Dictionary

[4] Section 69 of the Matrimonial Causes Act

[5]See Matrimonial Causes Act, s  70(2), 73(1)(a-b). See also, Negbenegbor v. Negbenebor (1971) I ALL NLR 2010, Supreme Court of Nigeria. See. Oniyinde, O. A et al, Spousal Maintenance and Alimony under the Matrimonial Cause Act (MCA0, (2019),Journal of Law and Judicial System, Vol.2(2).

[6] Section 69 of the Matrimonial Causes Act

[7] ONABOLU v. ONABOLU (2005) 2 SMC 135; A wife who provided financial support to her husband towards the acquisition of a property was entitled to share the property acquired by her husband. Kafi v. Kafi (1986) NWLR 175

[8]Matrimonial Causes Act, S.72(3)