Separating Your Properties In Marriage?

It has become a nightmare for young men to get married. The greatest of the nightmares is the decision to acquire property during marriage. Whilst some men mostly do the financing and everything, some women use just the fact of their marriage to the men to own a portion of any property acquired by the men. This is very unfair, and the worst of it all is that, although the law sought to protect the interest of women, it has overly protected them.

Anytime you tune in to Oyerepa TV/FM on Aunty Naa’s Show, you always hear about some women using their status as married women to make claims to part ownership of properties acquired solely by their husbands. This is not to say that some women do not finance some properties acquired in their marriages. A few do, and there is no issue giving a portion of the acquired properties to such women. The only problem is with women who do not, when in reality they are more than capable, however minimal.

It is for the above unfairness in reason that many young men are afraid to get married very early in life, especially when they are desirous of owning their personal or individual properties. For this reason, they delay their marriages and acquire these properties before getting married.

This notion creates the impression that a man cannot acquire his individual/personal property when he is married. This notion cannot be true when you have a third look at the law from a different angle.

To secure your own property in a marriage,
1. Acquire two but similar properties for each spouse;
2. Have an agreement with your spouse regarding the property before acquisition;
3. Acquire the property jointly with others;
4. Be generous to receive gifts; and
5. Acquire the property in the name of somebody or your child/children.

Acquire two but similar properties for each spouse;
The rationale behind the joint ownership of property by spouses is to avoid a situation where the woman will be put at a disadvantage upon divorce or death of the man. In the wisdom of the courts, a woman who wants to enrich herself upon divorce, by making claims to a property acquired solely by the husband when the husband has already acquired a similar property solely for her, will not be countenanced. This is not easy to do because it may be cost intensive, but doing this is beneficial. You two may agree to acquire separate but similar properties with monies from each side, after which each spouse enters into possession and use of each of the two properties. The presumption in law is that the couple intended that each spouse owns one of the two properties individually without joint ownership with the other. If the man is capable, he may use his own money to finance the building of both properties. Bear in mind that the properties should be similar in nature. Thus, the man’s property shouldn’t be very different from and very developed than the wife’s.

Have an agreement with your spouse regarding the property before acquisition;
All contracts signed between married couple would have been enforceable but for the principle of the lack of intentions to create legal relations. Under our Contract Law Jurisprudence, this principle says that any contract entered into between a married couple will not be enforced by the court because having a look at the social atmosphere and relationship between the two, the two cannot be said to have intended to enforce such contracts in court in the event of any breach. An agreement however, with the clear intentions of both spouses that their contract should be enforceable by the courts, will therefore be enforced by the courts. On this, one has to see a lawyer for the preparation of a specialised agreement to be signed by the couple before the acquisition of a particular property. In the agreement, both spouses should agree that the property is being acquired for this particular purpose, e.g. for charity works, as a gift to another member of the family or to a child, for a spouse’s business, etc.; and most importantly the couple must agree that their agreement should have the full backing of law through enforcement by the law courts.

Acquire the property jointly with others;
Another means of securing a personal property during marriage is to acquire the property jointly with another person or persons in a ratio that is unclear. When this is done, the property does not become a marital property, especially when the property was acquired for business purposes. Joint properties acquired with persons outside the marriage, depending on its nature, may not be classified as marital properties by the courts.

Be generous to receive gifts;
The exception created by law when it comes to properties acquired by a spouse during marriage, is when the property is acquired by way of a gift. Thus, some other person gifted the property to one of the couple. When this happens the property acquired through gift will be deemed as the individual property of the spouse receiving such gift, with no joint ownership with the other spouse. So when you are generous enough to be receiving gifts from people, it doesn’t matter whether you are married or not. Any gift received is your personal property and not jointly owned with your wife or husband.

Acquire the property in the name of another, especially your child/children;
Acquiring a property in the name of another person is also another way to acquire a separate property, not jointly owned with your spouse. The reason is because the law presumes that a property acquired in the name of a person is owned by that person. So acquiring properties in the name of your child or children creates a strong presumption that the property is for the children or child solely, but not jointly owned by the couple.