One of the challenges in marriage is the lack of assurance that whatever properties are acquired during the marriage are for both spouses. This has led to some contemplating divorce and others resorting to secretly building their own empires.
If truth has been made the foundation of marriages and love which seeks not its own, unions would have been like paradise.
Article 22 of the 1992 Constitution presumes that properties acquired by spouses during the marriage is owned by both unless any contrary intention is expressed. It is right to think that by this assumption that such properties will have to be shared equally from the start. Other considerations and intentions will determine what proportion each of the spouses will get at the end of the day.
Article 22 of the 1992 Constitution:
(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article –
(a) spouses shall have equal access to property jointly acquired during marriage;
(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
Sections 38(3) and Section 38(4) of the Land Act, 2020 (ACT 1036) make it clearer and add that the provision still holds whether or not the names of both spouses are in the property registration documents. Interestingly, the written consent of the other spouse is required before the property could be disposed of, sold, or transferred as further presented in Section 47 of ACT 1036.
Restrictions on transfer of land by spouse (Section 47 of ACT 1036): Except as provided in subsections (3) and (4) of section 38, in the absence of a written agreement to the contrary by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage,
a) sell, exchange, transfer, mortgage or lease the land, right or
interest in the land,
b) enter into a contract for the sale, exchange, transfer, mortgage or lease of the land, right or interest in the land,
c) give away the land, right or interest in the land inter vivas, or
d) enter into any other transaction in relation to the land, right or interest in the land
without the written consent of the other spouse, which consent shall not be unreasonably withheld.
However, it may be safer to have both names on the registration documents, if accepted, to avoid always fishing for which property has been registered and which names are on them.
If you are married and properties you bought together have been registered in either your husband or wife’s name, just be assured that the law says it is for BOTH of you. Just write a letter of interest as a party and file a copy to be inserted in the registry. Your written consent will always be required before it is disposed of unless evidence suggests you have no share in the said property even though it was acquired during the marriage.
Though we are not to put our trust in man as the good book advises and we may always want to take caution, if love reigns, ONE WILL NOT SEEK his/her own for all are VANITY.
DAG broods