TheCable

BY STANLEY ALIEKE

In divorce proceedings, the most focal bones of contention amongst the couples are the custody/maintenance of children and the issue of division and settlement of properties, especially jointly owned properties. Who gets what is always one of the major issues tabled before the court during divorces, especially among rich and celebrity couples.

The general rule in the division and separation of properties amongst couples during divorce is that every property acquired by each of the couples is to be added together and they are to be split amongst them equally. It does not matter if one of the spouses was the sole breadwinner in the marriage whilst the other spouse is a sit-at-home mom or dad. Whatever property purchased whilst the marriage subsists is presumed to be jointly purchased and jointly owned by the couples hence why the properties are to be collated and shared amongst them equally.

Every property acquired during the marriage — including real estate, money at hand or in the bank accounts or stocks/bonds or chattels like clothes, shoes, jewelries, house decorations, bags, (even up to) toothbrushes — are presumed to be marital properties, jointly owned and are to be collected/collated together and shared equally amongst the couples in the event of divorce.

It is important to note that in some jurisdictions, marital properties are those acquired from the day the marriage was entered up till the day the divorce pronouncement was made by the court; i.e, properties acquired even while you are already separated from the spouse but yet to be officially divorced are still presumed to be marital properties and jointly owned but in some other jurisdictions, marital properties ends when you have separated although haven’t divorced yet.

The trick of putting an asset or a bank account where you deposit your earnings during the marriage in your name alone will not disqualify such asset from being considered marital property but there are some instances where a spouse or the court can let one spouse keep a property even though the property was obtained during the marriage; this may include a property that is of sentimental value to one spouse.

The legal strategy where a couple, in the event of divorce, can keep some of the properties or assets acquired during marriage separate and personal is through a prenuptial or post-nuptial contract. This kind of agreement to keep some properties separate is to be entered in writing for it to be valid and enforceable in law.

Other forms of properties that may be kept separate include;

1. Gifts or inheritances that one spouse received, either before or during the marriage
2. The portion of certain personal injury awards meant to compensate for the injured spouse’s pain and suffering.

All property that a spouse pre-owned before entering into the marriage is presumed to be personal and separate, belonging to just that one spouse unless the couples agreed that every personal property acquired before the marriage is to become a joint property once they have entered into the marriage. Another way a separate property can turn into a joint spousal property is if it gets mixed up or comingled into the joint property; for instance, if the money in a spouse’s separate joint account is transferred into the couple’s joint account, every money in the joint account is then presumed to be jointly owned.

Therefore, ownership of the spouses’ personal/separate property after the divorce will depend on whether the assets are considered one spouse’s separate property or the couple’s marital property.

In the division of marital or joint properties during divorce, there are basically two different methods applied by the family courts and they are;

1. Equitable distribution
2. Community property distribution.

In equitable distribution, the judge will divide all of the couple’s marital property (and allocate their marital debts) based on the judge’s decision as to what is fair, equitable and just to both spouses. The division of the marital properties is based solely on the judge’s discretion as to what is equitable and fair and not on what the couples want.

In forming this discretion, the judge considers who shoulders higher responsibilities like keeping custody and maintenance of the children. A parent that keeps the custody and maintenance of the children is definitely going to be given the lion’s share of the marital property; that according to the judge will be equitable, fair and just to both couples. Whereas, in the community distribution method as has been adopted by some jurisdictions, marital properties are to be divided equally amongst the couples equally i.e. on a 50-50 basis. An equal division of a couple’s community property (and debts) when they divorced.

In conclusion, marriage is a contract and should therefore be treated as such especially in Nigeria so as to avoid some unforeseen bickering and ripping off.  The legal way to protect your separate properties before marriage or even other properties acquired during the marriage is through a legal contract known as a prenuptial agreement but if you skipped getting a prenuptial agreement, a postnuptial agreement may come to your legal rescue.

Stanley Alieke is a legal practitioner. He can be reached via [email protected]