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Child Custody and Property Rights in Marriage

Where for whatever reason, parties in a marriage terminate their marriage, what becomes of the children and property of such marriage?

Even where there is no termination, there are circumstances, where a wife may need the sole or shared custody of the children of her marriage, same applies to property too. A married woman has equal rights with her husband over the custody of the children of their marriage. Irrespective of the sex of a child, a wife (his/her mother) can seek and obtain custody of the child. Issues and matters pertaining to and affecting children in Nigeria, is covered by the Child’s Rights Laws in states across Nigeria and in the Federal Capital Territory.

Irrespective of the type or form of marriage, wherein a child is born into, the custody of the child is considered as a matter of children’s rights. The first and only golden principle is that any decision must be made only in the best interest of the child.

Before and during marriage, a couple may acquire movable and immovable property. In some cases, the property may be acquired in the name of the couple or in the name of either of the spouse. Some property may be jointly owned or not. However, where marriage is terminated (either by death or any other reason), there is always need to share property of marriage, whether jointly owned or not, whether owned/purchased in the name of the couple or in the name of either of the spouses.

Any person in Nigeria has the right to own property as a fundamental human right and this obviously includes women (whether married or not married). A wife has certain property rights that arise as a result in the course of marriage. These rights may be exercised within the marriage, in the event of dissolution of marriage or upon the death of a husband.

Child Custody

When a marriage has produced children, both parents have equal responsibilities and rights over their children, including the right to raise, influence and make decisions for and on behalf of their children. (Nwosu v. Nwosu (2012) 8 NWLR).

When a marriage is dissolved, there is a need for the custody of the children to be decided in order to determine if one or both parents will continue to exercise this right and the extent to which the right can be exercised. It is important to note that custody of a child/children can also be gotten without dissolution of a marriage, as long as it is in the best interest of the child/children.

Custody matters arising from any statutory marriage can be brought before a High Court or Magistrate Court. Where the marriage is a Customary Marriage or an Islamic marriage, a custody matter can be brought before a Customary Court or Sharia Court, respectively.

Legal Framework for Child Custody

The legal framework for the right to custody of children varies based on the type of marriage, but must at all times, be based on the best interest of the child.

1. In the case of statutory marriages: Custody of children under statutory law is governed by the Matrimonial Causes Act and the Child’s Rights Act which provides that the custody of the children is not automatically bestowed on any person but will be determined based on the best interest of the child. Ahead of a custody order of a court, both parents have an equal right to the custody of their children (As confirmed in Nwosu v Nwosu (2012) 8 NWLR Pt 1301). A case for the custody of a child can be brought before a Magistrate Court or a High Court.

2. In the case of customary marriages: the custody of a child of a customary marriage is given to the father of the child (M C Onokah (2003) Family Law in Nigeria). However, various provisions of law render these customs invalid, particularly, if granting custody to the father will not be in the best interest of the child.

Febisola Okwueze v. Paul Okwueze (1989) 3 NWLR pt 109, pg. 321

Under most systems of customary law in Nigeria, the father of a legitimate or legitimized child has absolute right of custody of the child. Though the superior right of the father is recognized, this right will not be enforced where it will be detrimental to the welfare of the child. The only proper manner in which custody of a child under customary law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child.

3. Under Islamic law, a wife only retains custody of a child when the child is a toddler, or less than the age of seven for a male child and nine for a female child, after which custody goes to the father. However, the welfare of children will be considered in awarding custody.

In the case of Bilyamin Bishir v. Suwaiba Mohammad (KTS/SCA/KT/39/2019), the Sharia Court of Appeal held that the first thing to be considered in child custody matters is the child’s best interest, health, proper training, and the child’s education.

Any determination of child custody must be done bearing the welfare of the children in mind and must be in the best interest of the child. Any discrimination in the granting of custody that does not align with the welfare and best interest of the child is invalid, unlawful and can be challenged in Court. This is all reflected in the following national and international provisions:

Buwanhot v. Buwanhot (2011) FWLR Pt 566 p552: “the welfare of a child of a marriage, in terms of their peace of mind, happiness, education and co-existence is the prime consideration in granting custody.

 Odusote v. Odusote (2012) 3 NWLR pt 1288 p. 478: “the interest of the child includes welfare, education, security and overall wellbeing and development.

 Child’s Right Act: Section 1: In every action concerning a child, whether undertaken by an individual, public, or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration.

Customary Courts Law (Cap 41) 2006 of Ondo State, Section 22(1): “In any matter relating to the guardianship or custody of children, the interest and welfare of the child shall be of paramount consideration.”

Similar provisions are contained in Section 28 of the Customary Law of Lagos State (2011) and Section 16(1) of the Customary Law of Enugu State

CEDAW: Article 16: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

 African Charter on the Rights and Welfare of the Child: Article 4: In all actions concerning the child undertaken by any person or authority, the best interests of the child shall be the primary consideration.

How to Obtain Child Custody

A wife can get custody of her children under statutory, customary, and Islamic marriages. Custody can also be gotten upon dissolution of marriage and even without dissolution.

Under Statutory Marriage:

  1. A lawyer should be consulted for legal advice on the possibility and procedure for exercising this right;

  2. Assuming that termination of marriage is being sought as well as child custody, after filing a petition for the dissolution of the marriage, the wife should also file a motion for temporary custody of her children and to give notice to the husband about this This is regulated in Order 14, Rule 23(1) c of the Matrimonial Causes Rules;

  3. If the court rules in the wife’s favour, the ruling will be delivered to her husband who will have 7 days to challenge the ruling of the court.

  4. After hearing the husband’s response, the court can either uphold its earlier ruling or give a new ruling in favour of the husband;

  5. This temporary custody will be valid until the case for dissolution of marriage is settled and a judgement is given by the court. If the marriage is dissolved, the court will once again make orders as to child custody, based on what it considers is the best interest of the child.

Custody under Customary and Islamic Marriages:

A wife can bring a petition for the custody of her children before a customary court (in the case of a customary marriage) or a Sharia Court (in the case of an Islamic marriage).

She may be granted custody of her children over her husband, if it is determined that the best interest and welfare of the children will be better protected under the wife’s custody and care.

A wife who plans to seek for custody can plan in the following ways:

  1. A wife must plan for conducive residence for herself and the children.
  2. It is important to save up money because the court needs to be convinced of the wife’s financial stability;
  3. A wife needs to have a good job. The court may require proof of work in order to determine whether granting custody to the wife is the best option for the children’s welfare;
  4. If a wife has been prevented from working by her husband, she needs to get evidence to prove this. It will also help the wife to claim maintenance from her husband in divorce proceedings.
  5. If a husband has a particular behaviour which the wife believes makes him unsuitable to have custody of their child, it is important to gather as much evidence of this behaviour as possible. The court takes the conduct of the parties into account (Obajimi v. Obajimi (2012) ALL FWLR Part 649, page 1168)

Independent ownership of a woman’s property

Any property acquired by a woman both before she entered into a marriage and during the marriage independently remains her separate property. She is free to manage or dispose of the property as she deems fit without undue interference from her husband.

This right is guaranteed under the three types of marriages in Nigeria. The right of independent ownership of property applies to all types and forms of marriages in Nigeria.

Legal Framework for Independent Control of Property.

  • The constitution of Nigeria guarantees this right in section 43, where it states that every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria. It is a fundamental human right, as such it is constitutional and cannot be ordinarily violated by any person, custom, religion or law.
  • The Married Women’s Property Act (a federal law) provides in section 1 that a married woman shall be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a femme sole (unmarried woman, spinster, divorcee), without the intervention of any trustee.
  • The Quran recognizes women’s right to acquire and utilize property through purchase or inheritance from husband. Women have control over assets they purchased independently and received as gifts.
  • Aderounmu v. Aderounmu (2003) 2 NWLR, Part 803, Page 1: The issue before the court was whether a married woman was capable of acquiring, holding, and disposing property.  The court granted an order asking the husband to vacate property belonging to the  wife as sole owner and an order directing the husband to hand over to the wife the Land Rover Jeep being property belonging to the  wife.

How can I Enforce this right?

Civil Proceedings:

Section 12 of the Married Women’s Property Act provides that a wife can bring civil or criminal proceedings against any person including her husband for the protection and security of her own separate property provided that the act was committed, and criminal proceedings are instituted against her spouse when they are no longer living together.

A wife who intends to go to court should consult and hire a lawyer to represent her in court. She can seek justice in a High Court or Magistrate Court. If the decision of the court is not justifiable to the wife, she can also appeal to the Court of Appeal and subsequently to the Supreme Court.

What evidence do I need to present?

Documents and any proof showing that you have validly acquired the property.

What are the expected remedies?

  1. A declaration from the court confirming ownership of the property.
  2. A declaration from the court prohibiting continuing and subsequent violations.
  3. An order for damages (monetary compensation) against the person who has interfered with the property right.

A claim under the fundamental human rights proceedings, a wife can approach a High Court or a Federal High Court to enforce her right to own property against her husband or any other person, violating or threatening to violate such right.

The remedies a court can grant a wife may include; payment of compensation to a wife, issuance of a protection order in favour of the wife, declaration of the rights of the wife, prohibition of continued or subsequent similar violations of rights of the wife.

Criminal Proceedings: Depending on the circumstances, a wife may pursue legal solution under criminal law which may lead to criminal punishment such as imprisonment, fine or community service.

Joint ownership of property in marriage

The husband and wife have equal rights to own, control, use and dispose of any joint property. A husband cannot dispose of or make decisions concerning the joint property without the wife’s consent.

Also, in the event of a husband’s death, the wife will have full control over the property that the couple had jointly owned. There can be joint ownership in any form or type of marriage in Nigeria.

Article 7 of the “Protocol to the Charter on Human and People’s Rights on the Rights of Women in Africa” which has been ratified by Nigeria, states that both parties of the marriage shall enjoy equal rights within and outside the marriage on issues of custody and access to an equitable share of the joint property deriving from the marriage.

What if the wife contributed towards joint property that is in dispute?

Section 17 of the Married Women’s Property Act (MWPA) allows a judge to use his discretion to decide on any question between a husband and wife as to the title or possession of a property.

In the case of Oghoyone v. Oghoyone (2010) LPELR-4689 (CA), the court decided that the contributions of a wife towards the property in dispute gave the wife the right to be considered a joint owner with her husband and it held that the husband and wife were to share the proceeds of the sale of the jointly owned property equally.

How can I enforce this right?

A wife whose right to joint ownership of property is being or has been violated can bring a civil or criminal case against any person responsible for violating this right. In the civil case, the wife can ask the court to make an order protecting her joint ownership right or to order monetary compensation be paid to her for the breach of this right.  Where the breach of joint ownership right results in a crime, a criminal case can be brought against the offender who if found guilty can face punishment including imprisonment, community service, monetary fines, or forfeiture of property.

Do I need to go to court?

The best way to enforce right to joint ownership of property is to ask the court to make an order protecting the right and providing legal solution for the breach of this right. A wife who intends to go to court should consult and hire a lawyer to assess and advice on the viability(merit) of her case and also to represent her in court.

What Evidence do I Need to Present?

A wife trying to prove joint ownership of a property can present documents from the purchase of the property which contain not just her husband’s name but her own name as well, showing that she is a co-owner of the property. The names should not appear as Mr. and Mrs. David John (for example) but each of the names have to be clearly provided, such as: Mr. David John and Mrs. Jane John (for example). This is because the former (Mr. and Mrs. David John) is not a legal person recognized by law, having capacity to own or hold property and to enter into a contract. Osuji v. Ekeocha (2009) LPELR- 2816 (SC)

If the couple acquired the property through a company they own, the wife can present incorporation documents proving that she is a director/shareholder in the company. The couple can also have a Principal Property Settlement Agreement (PPSA) where landed properties are listed out and expressly made to be jointly owned. This agreement when presented to court will help prove joint ownership of the property. It is important to prove that you contributed directly and substantially to the purchase of the property. This can be proven by tendering bank documents showing the disbursement of monies for the purpose of acquiring/developing the property.

There can be joint ownership of property, by virtue of a wife being a wife and helping with domestic and other works, while the husband had enough time and support to acquire property for himself or for the family. In this case, even without any financial or material support from a wife, the court will consider other alternative jobs and sacrifices put by a wife in her family.

What are the expected remedies?

  1. The court can make an order sharing the property between joint owners;
  2. The court can order that a wife is entitled to a percentage of the proceeds from the sale of the jointly owned property;
  3. The court may also order that a husband pays off the wife for her share of the property and thereafter retains the property for his own use or the wife pays off the husband and retains the property for her own use.

Right to Maintenance

Under statutory marriage, a wife has the right to be maintained/taken care of by her husband during and after the marriage. This maintenance is important to ensure that a wife is financially secured. The right to maintenance is not protected under customary marriage. The Quran however specifies this right and husbands are responsible for the maintenance of their wives.

Quran 4:34:

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth.

What is the legal framework for this right?

The Matrimonial Causes Act in section 70 allows a court to make orders relating to maintenance of a wife in a marriage. An application for a maintenance order can be brought before the court on its own without an application for separation or divorce. This means that even during a marriage, a wife can ask a court to order her husband to pay her a sum of money periodically for her upkeep.

In the case of Amah V. Amah (2016) LPELR- 41087-CA, the court held that the principles guiding assessment of maintenance are: a) the station of life of the parties and their lifestyle, b) their respective means, income and earning capacities, c) the existence or non-existence of child or children in the marriage, d) the conduct of parties, and e) the length of the marriage.

How can I enforce this right?

This right can be enforced by asking the High Court to order a husband to pay the wife maintenance.

What evidence do I need to present?

According to the Matrimonial Causes Rules (Order XIV, Rule 4(4), when making an application for a maintenance order, a wife needs to show the court the following:

  1. Her property, income, and financial commitments;
  2. Her capability to earn income;
  3. The property, income, and financial commitments of your husband, so far as they are known to her;
  4. The capability of her husband to earn income, so far as that capability is known to her;
  5. Any financial arrangements in operation between a wife and her husband;
  6. Any order of a court under which one of the parties to the marriage is liable to make payments to the other; and
  7. The ownership of the home in which a wife is residing and the terms and the conditions upon which she is occupying or otherwise residing in that home.

What are the expected remedies?

The Court may make an order directing a husband to pay maintenance to the wife, as the court sees fit based on the evidence presented before it.

Right to inherit property

When a man dies, his wife is entitled to inherit his property in Nigeria.

A widow under statutory law is entitled to a share of her late husband’s property under the Administration of Estate Laws of various states in Nigeria. Where her husband has left a “Will”, the “Will” shall be used to determine the share of the estate which she is entitled to. If a husband dies without a “Will”, the Administration of Estate Law of the state will apply. If the state has not enacted a Law to govern distribution of property, then the Common Law will apply. Both the Administration of Estate Law and Common Law prescribe that on the death of the husband, the wife will come first in the order of people to benefit from the deceased husband’s estate.

Felicia Ngozi Okonkwo v. Benjamin Aforka Okonkwo & 5 Ors (2014) 17 NWLR (pt. 1435):

A childless widow who was prevented from inheriting as much as a male intestate spouse by Section 120(1)(b) of the Administration and Succession (Estate of Deceased’s Person) Law of Anambra State, 1991, The court held that to the extent that it discriminates or dichotomises between male and female intestate spouses, it is inconsistent with Section 42(1) and indeed (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

A widow under Islamic law will also have a right to inherit her late husband. The Holy Quran in chapter 4:7-8 permits a wife in an Islamic marriage to inherit her deceased husband’s property. The wife is entitled to a fourth of the deceased’s property if the marriage produced no children and an eight of the property if the marriage produced children, as confirmed in Muhammadu & Ors v. Murtala & Anor (2018) Lpelr-44125(Ca).

A widow under customary law will also have a right to inherit her late husband. Any tradition or custom that prohibits a wife from inherit from his husband is discriminatory and unlawful.

Onyibor Anekwe & anor v. Maria Nweke (2014) LPELR – 22697 (SC):

The wife in this case sought to establish and restate the right of a widow without a male child to inherit from her husband contrary to the obnoxious discriminatory customary practice of the Amikwo community in Awka which did not recognize her right of inheritance. The Supreme Court which toed the line of the lower courts held that the custom of the Awka people of Anambra State which stated that a married woman who had only daughters and no male child for the husband cannot inherit landed property from the late husband, is barbaric and repugnant to natural justice, equity and good conscience and ought to be abolished.

In the case of Ugbene v. Ugbene & ors (2016) LPELR-42110(CA), the wife and female children of the deceased were prevented from inheriting under the Egede native law and custom. The court held that this custom amounted to discrimination and was contrary to the provisions of the Constitution in Section 42.

Article 21 of the Protocol to the Charter on Human and People’s Rights on the Rights of Women in Africa which has been ratified by Nigeria provides that a widow or widower shall have the right to inherit each other’s property in the event of death whatever the type of marriage and to continue living in the matrimonial home.

How can I enforce this right?

This right can be enforced by:

  1. Obtaining a Letter of Execution (this is an authority from the court to execute the wishes of the deceased person), where the husband left a Will (this is a legal document that contains the wishes of a deceased person concerning how the property left behind should be shared) or
  2. A Letter of Administration (this gives a person the authority to administer the estate or property of a deceased person) where no will was left behind.
  3. Where there is a dispute, a case can be brought before the High Court.

Do I need to go to court?

Yes. A widow needs to go to court if there is any dispute arising from the sharing of her deceased husband’s property. A civil or criminal case can be instituted against person attempting to violate a wife’s right to inherit her deceased husband’s property.

What evidence do I need to present?

To get a letter of administration, a widow needs to provide:

  1. Death Certificate of the husband
  2. Marriage Certificate proving that a wife was validly married to the deceased or any other proof.
  3. Certified true copy of deceased’s record of service if the husband was a public officer and the wife wants to receive the husband’s pension.
  4. Retirement letter/ pension ID, card if the deceased was a pensioner.
  5. Wife’s passport photograph and valid means of identification

In a court case arising from inheritance dispute, the following can be provided as evidence:

  1. A marriage certificate showing that the wife was validly married to the deceased under statutory law, or any other proof.
  2. Proof that the wife was validly married to the deceased under customary law or Islamic law. This can include witnesses to the Marriage Ceremony or a Certificate of Marriage if one was issued.
  3. A will if the deceased had made one.
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