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.
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| Barr. Itsede Kingsley Okhai |
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
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.
