By Babayemi Olaniyan Esq, LL.M, Notary Public, ACIArb(UK), ACIS.
Introduction
Emotions fly when a marriage ends. Parties often times are looking for the best way to hurt the other party including financial harm and disempowerment. The most complex part in a divorce is financial separation. Couples who once shared resources must now decide how to divide what they built together. Homes, land, savings, cars, and even businesses come under scrutiny. Sometimes, spouses agree on how to share these assets, and the court formalises their decision. Where no agreement is reached, however, it falls to the court to decide.
Property sharing (or settlement of property) is not limited to assets alone. Debts, such as mortgages, loans, and business obligations, are part of the equation. Under Section 72 of the Matrimonial Causes Act, 1970, Nigerian courts have a wide discretion to distribute assets and liabilities fairly, though fairness does not always mean equal division. In this article, we break down how Nigerian courts approach the sharing of assets and debts in divorce and highlight practical steps you can take to protect your financial future if you find yourself in this situation.
What Is Matrimonial Property?
Matrimonial property[1] covers the assets couples build, acquire or bring into the marriage, such as houses, land, cars, savings, investments, stocks, pension, art collections and even ordinary household items. In Nigerian law, property acquired during the marriage, whether in one spouse’s name or both, is generally presumed to be matrimonial property. Unless there is a valid prenuptial or postnuptial agreement saying otherwise, property or assets acquired during the marriage (and the debts tied to it) usually fall into the pool to be shared at divorce.
However, not all property automatically counts as matrimonial. Property owned before marriage or kept strictly separate during the marriage may remain the individual property of one spouse. But boundaries often blur in practice. For example, if funds from one spouse’s personal account are moved into a joint account, those funds may lose their separate character. Similarly, if one spouse buys land in their name but the other spouse contributes to building on it, that property may be treated as matrimonial property. The same principle applies to debts. A loan may have been taken in just one spouse’s name, but if the loan clearly benefited the family, for example, the loan was used to pay school fees, the court may treat it as a joint obligation.
Understanding Debts in Divorce
When it comes to debt, there is an important distinction:
- Individual debt[2] is a debt taken in one spouse’s name (like a personal credit card or a loan taken before marriage). Only the signing spouse is legally liable for such debts.
- Joint debt, on the other hand, is a debt taken in the names of both spouses (e.g., mortgage, joint business loans, or loans for rent, school fees or family upkeep). In this case, both spouses remain equally liable. Even after separation, creditors can pursue either spouse until the debt is fully paid. This is called joint liability.[3] Joint liability means that when couples share the benefits of a loan during marriage, they may also share the responsibility of repayment after the marriage ends.
Judicial Approach to Property and Debt Sharing
The Nigerian courts have made it clear that the property sharing in matrimonial proceedings is a balancing act grounded in fairness, contribution, and evidence. In Aguolu v Aguolu,[4] the Court of Appeal set out the basic requirements for any party seeking property settlement, emphasising that they must prove three things: “(1) that the property is a matrimonial property; (2) the contribution to the acquisition of that property; and (3) that it is fair, just and equitable to settle such properties.” The court went further to state that
‘’The Appellant therefore cannot merely state that the Court must make an order for settlement of the matrimonial property on a 50-50 proportion without showing the Court the material facts upon which to believe that such order would be just, fair and equitable. It is correct that contributions need not be financial as stated in the authority of KAFI vs. KAFI (1986) 3 NWLR (PT 27) 175, which both parties relied on and argued in their briefs. However, it is required that for the Appellant to lay claim to what she referred to as matrimonial property, she would need to demonstrate such entitlement beyond merely being married to the Respondent, a marriage which was deserted some 22 years ago’’
See also the case of MR. OLADIMEJI AREMU SUNMONU v. MRS. OLUMAYOWA AJOKE SUNMONU (2021) LPELR-56002(CA) Pp. 21-23, paras. E-D where the Court held as follows:
Let me hasten to state that the contribution of a party does not necessarily have to be in the nature of a cash outlay for the purchase or development of the property. It can be by way of moral and/or financial contribution to the business of a spouse by the other spouse where the property is purchased from the profits of the business. It is however essential that the property should have been purchased in the course of the marriage or where the property was purchased before the marriage, that the payment for the property or some development on the property was completed after and in the course of the marriage.
Similarly, in Onyia & Anor v Nwaigwe,[5] the court reaffirmed the presumption of joint ownership between spouses during marriage, noting that:
“It is also an elementary knowledge, that the presumption of joint ownership of property exists between husband and wife, while the marriage subsists … it does appear that most incidents of joint ownership occur where a husband and wife contribute to purchase and/or development of a property. Such contribution may be financial or material, provided that it is substantial and ascertainable.”
In Fribance vs. Fribance [6] the court held as folows:
“In the present case, it so happened that the wife went out to work and used her earnings to help run the household and buy the children’s clothes, whilst the husband saved. It might very well have been the other way round…. The title to the family assets does not depend on the mere chance of which way round it was. It does not depend on how they happened to allocate their expenditure. The whole of their resources were expended for their joint benefit ……. and the product should belong to them jointly. It belongs to them in equal shares.”
Further it is the position of the Court is that the property to be shared is not restricted to the properties jointly owned. See MR. OLADIMEJI AREMU SUNMONU v. MRS. OLUMAYOWA AJOKE SUNMONU (supra) where the Court held as follows:
‘’In my considered view, the words “either in possession or reversion” used in Section 72(1) of the Act to qualify the Court’s determination of the entitlement of the parties, connotes that the parameters for the determination of such entitlement cannot, for all intents and purposes, be restricted or limited to where the property to be settled is jointly owned or where the parties have contributed to its acquisition.’’
This judicial approach flows from Section 72 of the Matrimonial Causes Act, which grants the courts broad discretion to settle matrimonial property in a manner that is “just and equitable in the circumstances of the case.” In practice, this means the courts look past legal ownership documents and instead examine the broader realities of the marriage. Among the factors they consider are:[7]
- The welfare of the children – Their best interest remains a central concern.
- Contributions – Courts acknowledge not just money but also non-financial contributions such as domestic support.
- Whose name is on the loan document? –Even debts signed by one spouse can be treated as joint if both benefited.
- The purpose of the debt – Was it for family sustenance or personal use?
- Who benefited from the debt? – A loan used to pay school fees or rent may be classified as joint, while one funding personal needs may remain with the spouse who incurred it.
- The financial capacity of each spouse – If one spouse earns significantly more, the court may allocate a larger share of the marital debt to them.
Case law illustrates how these principles play out. In Kakulu v Kakulu,[8] the Respondent contributed ₦2.2 million towards the acquisition of the matrimonial home and asked the court, under Section 72 of the MCA, to order a refund. The Court of Appeal, by a majority decision, upheld his claim, recognising that fairness demands acknowledgement of demonstrable financial input. Likewise, in Mueller v Mueller,[9] the court underscored that the partitioning of matrimonial property must rest on equity:
“On the partitioning of the joint matrimonial property, I also agree that it must be done on the basis of equity. After all, EQUITY favours true equality, both of rights and liabilities, dividing burdens and benefits in equal shares.”
In Etebu v Etebu,[10] the court warned that mere claims of contribution will not suffice without credible proof:
“…there must be evidence, oral or documentary, that the matrimonial home came about as a result of joint contribution between the spouses …. Where there is a need for further proof, “a mere ipsi dixit” may not be enough.”
These cases highlight a consistent judicial approach: Section 72 of the MCA is not only about dividing assets but also about weighing both assets and liabilities in a fair manner. Ultimately, what matters is not whose name appears on a title deed or loan document, but whether there is credible evidence of real contribution and benefit.
Navigating Property and Debt Division During Divorce Proceedings
Divorce is tough enough emotionally, and financial surprises only make it more complicated. If you are going through a divorce and debts are involved, preparation can make all the difference. Here are a few practical steps:
- Gather documentation. Collect loan agreements, repayment records, title documents, and bank statements. This evidence is what the court relies on.
- Identify marital vs. individual property and debts. Make a clear list of what was acquired during the marriage and what was kept separate. Identify which debts are marital and which are individual.
- Assess repayment capacity. Be realistic about what debts you can shoulder after the divorce.
- Consider negotiation or mediation. Sometimes, reaching an agreement with your spouse outside of court can save time, cost, and stress.
- Seek legal guidance. Every marriage is unique, and the law is applied case by case. A lawyer can help you understand how courts are likely to treat your specific circumstances.
Why Documentation Is Your Best Safeguard
One recurring lesson in both law and practice is that documentation is power. Receipts, bank transfers, loan agreements, and written acknowledgements can make the difference between the recognition and rejection of a claim for settlement of property.
In many marriages, financial roles are informal as spouses tend to pool resources without keeping strict records. But in divorce, those records become vital. They help courts draw a clear line between joint and individual obligations and ensure that neither spouse is unfairly burdened or enriched.
Conclusion
At its heart, property sharing in divorce is about balance between assets and debts, between financial and non-financial contributions, and between the rights of spouses and the welfare of children. Under Section 72 of the Matrimonial Causes Act, Nigerian courts are not bound to share things equally, but equitably. That often means looking beyond documents to see the real story of the marriage: who contributed, how, and for what purpose.
For spouses, the takeaway is that preparation and evidence matter. Even though no one enters marriage planning for divorce, keeping records of financial obligations (assets acquired, debts repaid, and contributions made) places you in a stronger position if the need for separation ever arises. Fairness, at the end of the day, depends not just on the court’s discretion but also on the claim you can prove.
Babayemi Olaniyan is the Lead Partner of Lehi Attorneys and a family law expert with years of expertise in resolving family law matters. He is also a Notary Public of the Federal Republic of Nigeria
Contact
Email: yemiolaniyan00@gmail.com, www.lehiattorneys.com
Caveat! The content of this article is for educational purposes and is intended to provide a general understanding of the topic discussed. It is not intended to serve as legal advice whatsoever. If the contents appeal to you and you would want further clarification on any of the points raised therein, do not hesitate to send a mail.
[1] Joanne Wescott, ‘Who gets the house in a divorce?’ <https://osborneslaw.com/blog/who-gets-the-house-in-divorce/#what-is-matrimonial-property> accessed 25 August 2025
[2] Zaki Alam, ‘What happens to debt in a divorce or separation?’ 5 February 2024 <https://mnpdebt.ca/en/resources/mnp-debt-blog/what-happens-to-debt-in-a-divorce-or-separation> accessed 16 August 2025
[3] Will Kenton, ‘Joint Liability: Overview and Examples in Corporate Debt,’ 11 June 2025, Investopedia <https://www.investopedia.com/terms/j/joint_liability.asp> accessed 16 August 2025
[4] (2025) LPELR-80269(CA)
[5] (2021) LPELR-55692(CA)
[6] (1957)1 All E.R. 357 at 360 C.A., Denning L. J.
[7] MFL Team, ‘Am I Responsible For My Spouse’s Debt in Divorce?’ Modern Family Law, 1 October 2025 <https://www.modernfamilylaw.com/resources/am-i-responsible-for-my-spouses-debt-in-divorce/> accessed 16 August 2025
[8] (2016) LPELR-41552(CA)
[9] (2005) LPELR-12687(CA)
[10] (2018) LPELR-46250(CA)