In the course of marriage, it is common for couples to jointly acquire property as their matrimonial home. They may do so in their individual names or by using both of their names (for example, Mr. & Mrs X). However, in the unfortunate event that the marriage falls apart, some of the disputes that arise with regards to properties usually revolve around who is entitled to keep or dispose of the properties acquired during marriage. This month’s edition of the Private Client Update (PCU) will consider some issues surrounding entitlement to landed property jointly acquired and owned in the course of marriage and what happens when the marriage falls apart.
In other to appreciate this piece, it is important to understand what Joint ownership entails. Joint ownership as the name implies is a form of ownership of the same property by two or more persons, in this case, a husband and wife. Under 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. They are also afforded survivorship rights in the event of the death of a co-owner. In simple terms, it means that when one partner or spouse dies, the other receives all of the property they own jointly. However, it is important to note that 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 an advancement or a gift to her.
Finally, should any of the above situations arise, the law makes provision for sharing of the landed properties acquired during marriage. This could be by partitioning of the property in dispute. In doing this, the parties may voluntarily agree to divide the property or approach the court for an order in this respect. In the alternative, the parties can also agree to sell the landed property and share the proceeds. On the other hand, instead of dividing or selling off the property, one of the parties may pay off the other and thereafter retain same for his or her own use. No matter what the case may be, the Courts will take proper consideration of the facts and circumstances of each case in awarding ownership or making any direction in that regard.