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Sep 24, 2018

Joint Ownership of Property in Marriage: What the Law Says

Partners in a marriage sometimes find it necessary to jointly acquire property while the marriage lasts. The property may be acquired in their individual names or both names.
Joint Ownership of Property in Marriage: What the Law Says
Barr. Itsede Kingsley Okhai
Under such joint ownership, a husband and wife share equal ownership of the property and have the equal undivided right to keep or dispose of the property. When one partner dies, the other receives all of the property they own jointly. But while they are both alive, the powers exercisable on such property must be exercised jointly by both parties. As such, the husband cannot without his wife's consent, dispose of or transfer by a Will, any property he jointly owns with his wife, even after the dissolution of the marriage.

Most incidents of joint ownership occur where a husband and wife contribute to the purchase and/or development of a property. Such contribution may be financial or material, provided that it is substantial and ascertainable. The reverse is the case where no contribution is proved. Unless the spouse claiming contribution is able to provide convincing proof of a direct and substantial contribution to the acquisition of the property, such spouse cannot claim joint ownership. This is particularly so where the property in question was purchased in the individual name of the husband or the wife.

In some other cases, a husband may purchase a property in the name of his wife or vice versa. In such circumstances, the law would presume an intention to gift the property to the wife or the husband as the case may be. This is called a presumption of advancement. The presumption of advancement can, of course, be rebutted by proving that no gift was intended. In the absence of evidence to the contrary, property bought by a husband in the sole name of his wife is presumed to be a gift to her. This extends to where a husband acquires title to land with his sole funds but inserts his wife's name as a co-owner. In such cases, the wife will acquire an equal interest in the property. The husband may prove that his wife contributed nothing financially but the court would presume that the wife's half share is a gift to her.

Where a property is bought in the name of a partner for which both parties contributed, what is the status of the other spouse whose name is not on the title documents of the property? The answer has been given by the Court in the case of Okere v. Akaluka (2014) LPELR-24287(CA).  

                 

In the above cited case, the Federal Ministry of Housing and Environment allocated a property to Mr. Paul Akaluka in his name alone. At the time of allotment, the property was a one-bed room apartment. Mrs. Theresa Akaluka supported her husband by contributing financially towards the payment of the purchase price for the property. She also contributed to the reconstruction and improvements to the property. When the property was reconstructed and expanded to a three bedroom apartment, Mr. and Mrs. Akaluka moved in there with their seven children.

They lived together until Mr. Akaluka packed out of the building and abandoned his family, choosing to live with his concubine in another part of the town. While his wife and children were still resident in the property, Mr. Akaluka sold the house to Mr. Okere without the knowledge of his wife. Shortly after this, Mr. Akaluka died.

Upon her discovery of the sale, Mrs. Akaluka went to the High Court and asked the court to declare that alongside her husband, she was a joint owner of the property. She also asked the court to order that the purported sale of the property by her husband to Mr. Okere, without her consent as joint owner, was void. Finally, she asked the court to make an order restraining the buyer and his agents from ejecting her and her children from the property.

On the other hand, Mr. Okere disputed her claim of joint ownership of the disputed property and contended that the sale of the property to him by the late Mr. Akaluka was valid because all the documents were in the name of Mr. Akaluka alone and he was the only one described as the owner therein.

The Court held that the property was jointly owned by Mr. and Mrs. Akaluka as she substantially contributed towards the purchase of the property and also contributed towards its reconstruction, expansion and improvement. And so, Mr.  Akaluka cannot dispose of the property without her consent.

By this position,  the fear of some wives whose husbands have been outsmarted by omitting their names in the title documents after contributing to acquire family property has been taken care of.  It's however difficult most times to prove that a party whose name is not captured in the title document is a contributor.  It's safer to insist, in wisdom, to have your name reflected.

Note, however, that this does not apply to properties singly purchased by a partner before a marriage and those individually purchased without any form of contribution by the other spouse in a marriage.  So, marrying a rich man or woman is not a guarantee of your share if your contribution in acquisition of the property is not ascertained. The Court considers what is just and equitable in each case.

Happy knowing😊!

© Barr. Itsede Kingsley Okhai

About the Author

Itsede K. Okhai is the Lead Associate of Majek-Aina, Okhai & Associates, a firm of legal practitioners based in Lagos and an Advocate for Justice.

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