The belief that patriarchy is so entrenched in the Nigerian system and women have no rights under the law has been proved to be an erroneous one. Now
The belief that patriarchy is so entrenched in the Nigerian system and women have no rights under the law has been proved to be an erroneous one. Now a woman who marries her husband before a house is built has the right to live in the house with her children even after divorce under the provisions of the Married Woman Property Act 1882, a court held on Friday in Ibadan, Oyo State.
The provisions of the Married Woman Property Act 1882 formed the basis of the pronouncement of the Chief Judge of Oyo State, Justice Munta Abimbola, on Friday in a property suit between a divorced couple, Toyin Arajulu, formerly known as Mrs Toyin James and her former husband, Mr James Monday. The court held that “a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home.”
Justice Abimbola, while ruling on the matter, emphasised what is known in law as the “palm tree justice,” which indicates that it does not matter in whose name the property stands or who pays what (on the property) and in what proportion as determination of such matters transcends all rights, legal or even equitable, but simply what order is fair and just in the circumstances of the case.
In the divorce suit, Toyin Arajulu had filed against her ex-husband, Monday James, who she married under Native Law and Customs in 1997 and for whom she had four children, she claimed that while she was married to him, they had put resources together and built two flats of three bedrooms at Ayedun in Akure, Ondo State and procured a plot of land at No 7, Fadana Biala Estate, Olodo, Ibadan, where they built a three-bedroom flat and a storey building which is still under construction before their divorce in July 2014.
She averred that before the divorce, her husband had moved out of their matrimonial home in Olodo but only came constantly to try to forcibly eject her and the children, usually accompanied by thugs who attacked her and her children. Toyin had requested the buildings be sold and the money shared between them equally. Justice Abimbola held that she won’t give such order as the court reserves the discretion on the issues of title of possession to property.
“Section 18 enjoins the court to treat such property as a joint property if the issue has to do with the maintenance of a matrimonial home. My order to this effect is that the completed three-bedroom flat on the land be retained as the matrimonial property and the four children are entitled as beneficial owners by way of a resulting trust created for them by their parents. The mother, as long as she remains unmarried, is directed to be in possession undisturbed in order to take care of her children.”
Continuing, she said, the uncompleted storey building is ordered to be sold by both parties and the proceeds divided in equal share. The half share shall go to the wife for the maintenance of the children. A divorced wife has no business being maintained. The court also restrained James from harassing Toyin any further or disturbing the quiet possession of the property by her and the children, because, “the rationale is that a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home. Also, a divorced woman is not entitled to any maintenance allowance but maintenance of the children by way of settlement.”
