Legal implications of acquiring property(ties) jointly as MR& MRS.

It is not uncommon for a married couple to want to acquire property(ties) jointly as husband and wife. In fact, some consider it ideal. Even though they may have properties to their individual names, they may want to acquire some as a couple, maybe their matrimonial home, maybe for financial security in the event that either one passes.

For example, a husband and a wife may choose to buy a property in both their names or either one of them may buy a property in their name and their partner’s name. It is referred to as joint ownership and each person would have equal rights to the property no matter how much each party contributes.

Joint Ownership means that two or more people are the legal owners of a property. It is a form of ownership whereby two or more persons, in this instance, a husband and a wife, have equal ownership rights over a property, rights to keep, make use of or sell the property. These rights must be exercised jointly by both parties such that either party cannot sell, gift or transact with the jointly held property without the consent of the other. For a married couple, this also applies where they have been divorced. There is also what is called “survivorship rights” which implies that in the event of the death of one party, in this context, one spouse, the living party or spouse acquires full rights over the property and becomes the sole owner of it.

When purchasing a property jointly with your spouse there are things to note:

• The names of both spouses should be used in the title documents and the deed should indicate that it is a joint purchase. For example, if the married couple, Mr Chidi Akpan and Mrs Dele Akpan want to purchase a property jointly, the purchase document should indicate the names as “Mr and Mrs Chidi and Dele Akpan” or “Mr  Chidi Akpan and Mrs Dele Akpan” not “Mr and Mrs Akpan”. In the event of a divorce or a prior and pending marriage, the woman stands the chance of losing her property .  This is because in the eyes of the law, the title, “Mrs”, is merely, so to speak, an office that can be occupied by anyone. Mrs Akpan might be Mrs Dele today and Mrs Aisha tomorrow.
• Purchasing a property in your spouse’s name might be an act of love but it is not joint ownership. The court will presume that the intention was to gift the property to the spouse in whose name the property is. This is referred to as “Presumption of  Advancement”.
• In a joint ownership, both parties have equal rights to the property which is jointly owned despite the weight of the contribution made by each of them. For instance, where the Husband paid 95% of the purchase amount for the property and the wife pays only 5%, both parties have equal rights. This works vice versa and the same goes where one spouse pays the entire purchase sum so far as the purchase is in the name of both spouses.
• Where one spouse dies, another family member of his or hers cannot lay claim to a property jointly owned by the dead spouse and the living one. Upon the death of one of the spouses, the living spouse becomes the sole owner of the property.
• In the event of a divorce, both parties remain the joint owners of the property but may sell the property and split the proceeds or one party may buy the other’s share from him or her, voluntarily of course.

In a situation where joint ownership of a property by a couple is not indicated in the title documents or the couple makes the mistake of “Mr and Mrs Akpan”, the party claiming that he or she has joint ownership of a property can succeed in such a claim if it is proved that he or she made substantial contribution to the purchase or development of the property. This can be done by providing evidence to that effect in terms of receipts, witnesses, etc. Of course, success is dependent of a preponderance (weight) of the evidence provided by the Claimant.
Substantial contribution was taken by the court in Essien v. Essien (2009) 9 NWLR (Pt. 1146) 306, 311-312) to mean “direct financial contribution”. The court, in Ibeabuchi v Ibeabuchi (2016) LPELR-41268, added that contribution can be by way of moral and/or financial contribution to the business of the other party where the property is acquired with the profits of the business.

Courts are known to apply discretion in this regard in order to do what is just and equitable, however, instead of putting yourself and your financial stability at the mercy of the court, you can decide to apply the knowledge you have just received. No one wishes for a divorce, a death of a spouse or any unfortunate event that would bring about issues with joint property but life happens and if you are going to purchase a property jointly with anyone, why not do it the right way.

 

Streetlawyers.