Q1What is a Marital Property?

A marital property is a property regarded in law as jointly owned by a husband and wife. Such property may become a family asset and may confer inheritance rights upon surviving spouses and children, depending on the nature of the ownership and the applicable law.

Q2Is a Matrimonial Home Automatically a Marital Property?

NO

The fact that a property served as the matrimonial home does not automatically make it jointly owned by both spouses.

The party asserting joint ownership must provide evidence showing that both spouses made substantial and ascertainable contributions towards the acquisition, development, or improvement of the property.

Q3Does the Law Presume Joint Ownership Between Husband and Wife?

YES

Under certain circumstances, particularly in marriages celebrated under the Marriage Act, the law may presume joint ownership between spouses.

Where one spouse dies, the surviving spouse may inherit the deceased spouse’s interest depending on the nature of ownership and the applicable legal principles.

Q4How Can Joint Ownership Be Established?

Joint ownership is commonly established where both spouses contribute substantially towards:

• The purchase of the property;
• The development of the property; or
• Both the purchase and development of the property.

Such contributions may be financial, material or otherwise substantial and ascertainable.

Q5What Evidence is Required to Claim Joint Ownership?

A spouse or child claiming joint ownership must prove direct and substantial contribution to the acquisition or development of the property.

Without convincing evidence, particularly where the property is registered solely in one spouse’s name, the claim may fail.

Q6What is the Presumption of Advancement?

Where a husband purchases property in the name of his wife, or a wife purchases property in the name of her husband, the law may presume that the purchaser intended to make a gift to the other spouse.

This principle is known as the Presumption of Advancement. The presumption may be rebutted by evidence showing that no gift was intended.

Q7Can Children Automatically Claim Property Because Their Parents Were Married?

NO

The mere fact that a child’s parents were married when the property was acquired or developed does not automatically entitle the child to ownership or inheritance rights over the property.

There must be credible evidence establishing the legal basis of such entitlement.

Q8What Happens When One Joint Owner Dies?

The answer depends on whether the property is held as:

1. Joint Tenancy; or
2. Tenancy-in-Common.

Q9What is Joint Tenancy?

Joint tenancy exists where two or more persons own a property together as one legal entity.

A major feature of joint tenancy is the doctrine of Right of Survivorship.

Where one joint tenant dies, the deceased person’s interest automatically passes to the surviving joint tenant(s). The deceased person’s share does not become part of the estate available for inheritance.

Q10What is the Right of Survivorship?

The Right of Survivorship means that upon the death of one joint owner, the surviving joint owner automatically becomes entitled to the deceased owner’s interest.

• The property does not pass through probate regarding the deceased’s share.
• The deceased’s relatives cannot inherit that share.
• The surviving joint owner becomes entitled to the entire property.

Q11What is Tenancy-in-Common?

Under tenancy-in-common, each owner possesses a distinct share in the property.

Upon the death of an owner:

• The deceased person’s share forms part of his or her estate.
• The share may pass under a valid Will.
• If there is no Will, the share is distributed according to applicable succession laws.

Q12How Can One Tell Whether a Property is Joint Tenancy or Tenancy-in-Common?

The answer lies in the wording of the title document, deed, conveyance or Will.

Where there are no words indicating separate shares, the law generally presumes a joint tenancy.

The following expressions often indicate tenancy-in-common:

• “In equal shares”
• “Share and share alike”
• “Equally”
• “Among”
• “Respectively”
• “To be distributed among them”
• “To be distributed between them”

Q13What are the Four Unities Required for Joint Tenancy?

A joint tenancy is typically characterised by:

1. Unity of Title;
2. Unity of Interest;
3. Unity of Time; and
4. Unity of Possession.

Q14What Have Nigerian Courts Said About Joint Tenancy?

Q15Does the Common Law Rule of Survivorship Apply to Property Governed by Customary Law?

GENERALLY, NO

The Supreme Court has clarified that property jointly acquired under customary law does not necessarily create a common law joint tenancy.

Instead, customary-law co-ownership is governed by customary law principles and not necessarily by the doctrine of survivorship applicable under common law.

Q16Can a Deceased Husband’s Family Take Property Jointly Owned by Husband and Wife?

Where the property is held as a joint tenancy, the answer is generally NO

The surviving spouse becomes entitled to the deceased spouse’s interest by operation of law through the doctrine of survivorship.

However, where the property is held as tenancy-in-common, the deceased spouse’s share forms part of the estate and may devolve according to the applicable succession laws.

Q17Does the Type of Marriage Affect Property Ownership and Inheritance?

YES

The type of marriage celebrated by the parties can significantly affect property ownership and inheritance rights.

In Nigeria, marriages generally fall into three broad categories:

• Statutory Marriage (Marriage Act Marriage)
• Customary Law Marriage
• Islamic (Sharia) Marriage

Q18What is the Position Under a Statutory Marriage?

A statutory marriage is a monogamous marriage celebrated under the Marriage Act.

Under this form of marriage:

• Spouses may acquire property jointly or separately.
• Joint ownership is recognised and protected by law.
• The doctrine of survivorship may apply where property is held under joint tenancy.
• The surviving spouse has recognised succession rights.
• The estate of an intestate spouse is distributed according to applicable Administration of Estates laws.

Children of the marriage are generally recognised as beneficiaries of the deceased parent’s estate.

Q19What is the Position Under a Customary Law Marriage?

A customary law marriage is celebrated in accordance with the native law and custom of the parties.

Under customary law:

• Property ownership and inheritance are often determined by the applicable custom.
• Family property principles may affect ownership rights.
• The common law doctrine of survivorship may not automatically apply.
• The rights of surviving spouses may vary depending on the relevant customary law.

Q20What is the Position Under an Islamic (Sharia) Marriage?

Under Islamic law, inheritance is regulated by Islamic succession principles.

• A surviving wife is entitled to a specified share of her husband’s estate.
• A surviving husband is entitled to a specified share of his wife’s estate.
• Children inherit according to Islamic inheritance rules.
• The estate is distributed according to prescribed proportions under Islamic law.

Q21What Rights Do Children of the Marriage Have?

Children born during the marriage ordinarily have inheritance rights over the estate of their deceased parent, subject to the applicable law.

The extent of those rights depends on:

• The type of marriage;
• The applicable succession law;
• The existence of a Will;
• The nature of the property concerned.

Q22Can Stepchildren Inherit From a Stepparent?

NOT AUTOMATICALLY

Generally, stepchildren do not automatically inherit from a stepparent merely because their biological parent married the stepparent.

A stepchild may inherit where:

• The stepparent expressly provides for the stepchild in a valid Will;
• The stepchild has been legally adopted by the stepparent;
• The stepchild receives an interest through a trust, gift or settlement; or
• The law creates a specific entitlement under particular circumstances.

Q23Can a Surviving Spouse Exclude the Children From Property Acquired Through Survivorship?

Where a property is validly held under a joint tenancy, the surviving spouse becomes the sole owner upon the death of the other spouse.

Since the deceased spouse’s interest does not pass into the estate, children generally cannot claim inheritance rights to that interest as beneficiaries of the deceased’s estate.

The surviving spouse is ordinarily entitled to deal with the property as sole owner, subject to any legally enforceable rights of third parties.

Q24What Lessons Should Married Couples Learn?

To minimise future inheritance disputes, spouses should:

• Clearly state the nature of ownership in title documents;
• Retain evidence of contributions towards property acquisition and development;
• Prepare valid Wills where appropriate;
• Obtain legal advice before acquiring property jointly;
• Understand the inheritance implications of their chosen form of marriage;
• Review their estate plans regularly.