Settlement of property is the transfer of property of a party or jointly owned to the other spouse. It confers the title over a property from one person to another. It is an ancillary relief granted during divorce proceeding. It must be contained in the divorce petition or answer and not an afterthought.
Due to the plurality of the Nigeria legal system,there are different legal principles guiding settlement of marriage under the different forms of marriage that is marriage under customary law and under statutory provision ( that is marriage under the marriage Act).
Under customary law,both the man and the woman can acquire property either before or during the marriage. The woman is not barred from holding or acquiring her own property. Also when the man acquire a property, he has sole interest or right over the property. When a marriage under customary law is been dissolved ,the woman has no right to claim for settlement of property even if she contribute to the acquisition of such property.She cannot through a court order compel her husband to settle the property to her.
However under the statutory marriage (that is marriage under the marriage Act) either of the parties can apply to the court alongside the divorce petition for the settlement of the property. The legal framework for settlement of property is the Section 72 of the Matrimonial Causes Act. It provides that is any matrimonial proceeding, the court can require both or either of the parties to settle of the property owned by both of either by either possession or reversion which the court consider just and equitable for the benefit of the parties and the children of the marriage.
The court in SMEE V. SMEE gave the objective of the law as part of a general purpose of providing for the settlement and adjustment of all matters arising out of the martial relationship at one time and in one proceeding.
The property to be settled must belong to either one of the parties to the marriage.The court cannot settle a property that belong to neither of the parties as seen in WATCHEL V. WATCHEL. The property can be either real or personal property. In ANDERSON V. ANDERSON, the court held that the partnership solely owned jointly by both parties can be settled. The court in determining the extent of the property to be settled,the court would consider the circumstance of the cases including the fortune of the parties and their responsibility.
It is worthy to note that Section 73 of the Matrimonial Causes Act is not operative for marriage under customary law. It only applies to marriage under the Marriage Act.
In settlement of property, the court has to act based on what is just and equitable .This gave the court a wide discretionary power to settle property as it consider what is just and equitable. In exercising this discretionary power, LORD DENNING in COOPER V. COOPER held that the court should act judiciously.
The court also can exercise its discretionary power on anti-nuptial and post nuptial agreement.Anti nuptial agreement are agreement made in contemplation of marriage.While post-nuptial,according to WILLE J. in PRINCEP V. PRINCEP, is a settlement made by a wife in the character of a wife,a husband in the character of the husband or both in the character of husband and wife in marriage. If the court approve such agreement,it becomes a binding contractual agreement.
The court can varies the settlement agreement either anti-nuptial or post-nuptial as it consider just and equitable for the benefit of both or either of the parties and the children of the marriage. This variation can be the whole settlement agreement or a part of it.The court in making this variation must consider
*Means of the parties
*The earning capacity
*Conduct of the parties
*Other relevant consideration.
Settlement of property for divorce proceeding is advantageous . Firstly it is an alternative to payment of lump sum where it is more reasonable.secondly, where the respondent or jointly own matrimonial home, the court may settle the property to provide a home for the applicant and the children. Also it is to prevent against uncertain financial future of the respondent.
In relation to the children of the marriage, the court would only settle property for the benefit of child below 21 years except special circumstance where it is justifiable to settle the property for its interest.( Section 73(4) M.C.A.)
In conclusion,the application of the law on settlement of property as contained in Section 73 of the M.C. is the only applicable to marriage under the Marriage Act and not those under customary Law.