By Geraldine C. Nzulumike
INTRODUCTION
Marriage, in itself, does not automatically entitle a spouse to an equal share of property upon divorce. By the provisions of the Matrimonial Causes Act 1970, entitlement to matrimonial property is determined by the spouse’s proven contribution (financial or otherwise). The recent decision of the Court of Appeal in Aguolu v Aguolu (2025) LPELR-80269 (CA) has reaffirmed this principle, underscoring that property settlement in divorce proceedings is governed by contribution, not entitlement. This article highlights the legal framework governing property settlement in matrimonial proceedings, with a focus on the challenges of proving non-financial contributions. It also considers key judicial decisions and offers practical insights.
LEGAL FRAMEWORK
- Section 15 of the Matrimonial Causes Act 1970
Section 15 of the Matrimonial Causes Act outlines the grounds upon which a marriage can be dissolved. The marriage must have broken down irretrievably, proven by one or more specified facts such as refusal to consummate the marriage, adultery, desertion, unreasonable behaviour, or prolonged separation.
2. Section 72 of the Matrimonial Causes Act 1970
Section 72 empowers the court, in matrimonial proceedings, to order the settlement of property for the benefit of all or any of the parties and the children of the marriage below 21 years, where such settlement is considered “just and equitable.” By the provisions of Section 72(1)(d) and (2), the court is expected to take into consideration the following factors in determining a question of settlement of property:
- Whether or not the property in question was acquired in the course of marriage?
- What was the contribution of each party to the cost of acquisition?
- What is just, fair and equitable to do in the circumstances in settling the property?
FACTS OF THE CASE (AGUOLU V. AGUOLU (2025) LPELR-80269 (CA))
The Respondent (Husband) filed a petition at the Ikeja High Court seeking the dissolution of his marriage to the Appellant (Wife) on the ground that the marriage had broken down irretrievably. He cited a 22-year separation and the Appellant’s conduct, which he claimed made continued cohabitation unreasonable. The Appellant filed a cross-petition based on adultery, prolonged separation, and irreconcilable differences.
The couple married in 1976, lived together until 1993 (for about 17 years), and had two children. At trial, both parties were directed to file supplementary addresses that specifically addressed the issue of property settlement. The trial court granted a decree nisi but declined to award the Appellant a 50% share of the matrimonial property, citing her failure to prove contribution. Dissatisfied, she appealed.
THE COURT OF APPEAL’S DECISION IN AGUOLU V AGUOLU
The Court of Appeal dismissed the Appellant’s appeal, upholding the trial court’s decision that marriage does not confer an automatic right to an equal share of matrimonial property. The sole issue for determination was:
“Whether the learned trial Judge was right in law and equity, under the facts and circumstances, in settling only one of the several matrimonial properties on the Appellant, thereby leaving the rights of the parties to all other matrimonial properties unresolved?”
The court, relying on Section 131 of the Evidence Act 2011, emphasised that a party seeking legal relief must prove the facts upon which the relief is based. The court outlined the key requirements for a successful claim for the settlement of property under Section 72 of the Matrimonial Causes Act:
“A party who wishes for the settlement of property must demonstrate to the Court,
(1) that the property is a matrimonial property;
(2) what is his contribution to the acquisition of that property; and
(3) that it is fair, just and equitable to settle such property.”
Though the parties agreed that the assets were acquired during the marriage, the Appellant failed to provide any documentary or credible oral evidence of her contribution. Her claim for equal division of the matrimonial property was thus rejected.
PROOF OF CONTRIBUTION AS THE BASIS FOR PROPERTY SETTLEMENT
Nigerian courts have consistently held that contribution, and not marital status, is the legal basis for settling property in matrimonial proceedings. The cases below highlight this position.
- Etebu v. Etebu (2018) LPELR-46250(CA) page 49 – 50
In this case, the court held that even in void marriages, settlement may be granted if there is evidence of joint contribution. Citing Oghoyone v Oghoyone (2010) LPELR-4689, the court held that, “The fact that a marriage is void does not affect the court’s power to order a property settlement. However, there must be evidence, oral or documentary, that the matrimonial home came about as a result of joint contribution between the spouses.”
Notably, this case clarifies that even where a marriage is void, equitable relief can be granted where joint efforts in acquiring property are established.
2. Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt. 559) 661 at 676 – 677 paras H – D
In this case, the court held that contributions to the matrimonial property can be financial or non-financial, such as homemaking or childcare. However, such contributions must be proven through evidence, not presumed.
3. Fribance v Fribance (1957) 1 All E.R. 357 at 360 (CA)
In this case, Denning L.J. (as he then was) stated, “The title to the family assets does not depend on the mere chance of which way round it was …. 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 share.” However, this principle only applies where joint contributions can be demonstrated.
4. Kafi v Kafi (1986) 3 NWLR (Pt. 27 175
In Kafi v. Kafi, the Nigerian Court of Appeal confirmed that contributions need not be financial. Emotional, domestic, and caregiving roles may also suffice. However, these must be proven. Mere assertion or the fact of marriage is insufficient.
THE BURDEN OF PROVING NON-FINANCIAL CONTRIBUTIONS
While Nigerian courts accept non-financial contributions as a basis for the settlement of property, the burden of proof remains substantial. This burden is particularly challenging for spouses, usually women, who assume unpaid domestic roles while the other spouse acquires property in their name. In such cases, contributions are rarely documented, making them difficult to prove in court. C.I.J. Ugwu notes that:
“In the face of marital realities, wives often play non-financial roles towards property acquisitions, and such must not be left out in the sharing of marital properties …. Also, properties and business success of parties to a marriage would usually be achieved by their joint efforts, which may not necessarily be quantifiable in monetary terms.”[1]
The courts’ insistence on proof, while legally sound, often disadvantages spouses who lack formal documentation of their contribution (often non-financial) to the matrimonial property. This tension is reflected in the following cases:
- Igbuwe v Igbuwe (2023) LPELR-60748(CA)
The court found that although the Respondent had no financial contribution, her “in-kind” contributions, such as managing the household and assisting the Appellants’ company, justified a share in matrimonial property.
2. Anieto v Anieto (2019) LPELR-47223(CA)
In upholding the decision of the trial court, the Court of Appeal held that, “Though the Respondent might not have contributed financially or in the nature of cash outlay towards the purchase of the land and subsequent development thereof, there is uncontroverted evidence that she actively contributed towards the success of the business of the Appellant which ultimately fetched the money with which the land was developed.” The court ordered that the property in question be sold, and the proceeds be equally shared between the parties.
3. Sunmonu v Sunmonu (2021) LPELR-56002(CA)
Although the Respondent did not contribute financially toward the property, the court held that it is just and equitable for her to remain in the matrimonial home, considering her decades-long occupation of the property and care of the children.
These decisions highlight the courts’ cautious willingness to accept non-financial contributions provided they are well evidenced. However, where there is no evidence to substantiate a claim of contribution, such claims fail.
GENDER DIMENSIONS AND COMPARATIVE PERSPECTIVES
In many Nigerian households, gender roles and cultural expectations assign domestic labour to women, without financial compensation or legal safeguards. Although Nigerian courts accept in principle that non-financial contributions such as homemaking, childcare, emotional support, or the sacrifice of one’s career can justify a spouse’s claim to matrimonial property, these contributions must be proven. As a result, upon divorce, such spouses are left in a precarious legal position.
While Nigeria’s legal framework for settling property in matrimonial proceedings is theoretically fair, in practice, it tends to be exclusionary. Courts rarely infer joint ownership or equal sharing unless there is compelling evidence. There is no framework to properly consider informal, non-financial contributions, as this decision is left mainly to the Judge’s discretion. In contrast, the Singaporean[2] courts apply a more holistic approach. In assessing non-financial contributions, they consider:
- Duration of the marriage.
- Number of children.
- Business or career support.
- Existence of third-party caregivers.
- Time spent caring for the welfare of the family.
Such factors create a more equitable foundation for evaluating claims based on non-financial contributions.
PRACTICAL STRATEGIES FOR LITIGANTS
Until the Matrimonial Causes Act is reformed, spouses, especially those in domestic roles, must take proactive steps to preserve evidence of their contribution to the matrimonial property. Recommended strategies include:
- Keeping records of household expenses and family support activities.
- Saving emails, texts, or photos showing involvement in business or home-related decisions.
- Obtaining testimonies from family, staff, or community members.
- Documenting any career changes made to support the marriage or spouse.
CONCLUSION
The decision in Aguolu v Aguolu (supra) reinforces the principle that claims to matrimonial property must be supported by evidence, including when non-financial contributions are relied on. While the courts acknowledge non-financial contributions, such claims must be substantiated with credible evidence. For now, the burden of proof lies squarely on the party that asserts his or her right to matrimonial property.
As the Nigerian matrimonial jurisprudence continues to evolve, greater clarity and recognition of non-financial contributions are essential. In the meantime, spouses and legal practitioners must present compelling evidence before the court to ensure fair outcomes.
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[1] Chinelo Immaculata Jane Ugwu, ‘Appraisal of the Concept of Matrimonial Property under Nigerian Law’ (2020-2021) 16 The Nigerian Juridical Review, pp 143 – 154 at page 151 and 154
[2] Elvira Akech, ‘Equitably Assessing the Weight of Non-Monetary Contributions in Kenya,’ Strathmore Law Review Volume 8 Issue 1 (2023) p.103 -137 at page 129