Matrimonial Property Rights in Nigeria: Comparing Statutory and Customary Marriage Systems

ABSTRACT 

This article analyzes Nigeria’s dual marriage systems and the stark gender inequalities they produce in spousal property rights. Women in statutory marriages enjoy independent property ownership, recognition of non-financial contributions during divorce, and clear statutory inheritance rights. By contrast, under customary law, women are often treated as property acquired through bride price, resulting in limited rights during marriage, minimal protections upon divorce, and discriminatory inheritance practices that frequently leave widows dispossessed. Examining property right sacrossmarriage, divorce, and widowhood, the article shows that these customary norms systematically violate constitutional equality guarantees and Nigeria’s international human rights obligations. Although courts have occasionally invalidated discriminatory customs, such interventions are inconsistent and limited in reach. The articlecallsforlegislative harmonization to create uniform property protections for all married women, stronger constitutional interpretation by courts, and community-based reform todismantle harmful cultural practices—steps essential for advancing women’s economic empowerment and achieving genuine gender equality in Nigeria. 

INTRODUCTION

The article critically examines how Nigeria’s dual marriage regimes—statutory and customary—produce structurally unequal property rights between spouses. It argues that customary law, as practiced in many communities, is built on patriarchal assumptions that position women as dependents or even as property acquired through bride price.. This ideological foundation informs the principle that “property canno tacquire property,” systematically excluding women from ownership and control of assets during marriage, upon divorce, and in inheritance.. In contrast, statutory marriage frameworks recognize women as autonomous legal persons capable of acquiring and managing property. The article highlights that although isolated customs grant women property rights, such variations are exceptional and do not alter the broader pattern of gendered dispossession.¹ By analyzing property rights across marital stages—coverture, dissolution, and succession—it demonstrates how the coexistence of statutory and customary systems entrenches legal uncertainty and amplifies gender inequality. The article ultimately contends that harmonizing these regimes and strengthening judicial oversight are necessary to align Nigeria’s family law with constitutional equality standards and international human rights obligations.

1 Tunde Adisa & Co, ‘Property Ownership in Nigeria – Rights of Married Women’ (Tunde Adisa & Co, n.d) 

https://tundeadisa.com/media_insights/property-ownership-in-nigeria-rights-of-married-women/ accessed 24 November 202

Overview of Marriage Systems in Nigeria 

Nigeria’s plural legal system manifests most starkly in matrimonial law, where two fundamentally incompatible marriage regimes operate concurrently: statutory marriage and customary marriage. This duality is not merely administrative; it creates divergent legal frameworks that produce profoundly different consequences for spousal property rights, particularly affecting women’s economic autonomy and security. 

1. Statutory Marriage Under the Marriage Act 

Statutory marriage embodies the common law tradition imported during colonial rule. Its strictly monogamous character distinguishes it from indigenous marriage practice sand signals its origins in English law. The Marriage Act² governs formation, while the Matrimonial Causes Act³ regulates dissolution and ancillary matters including property distribution. Validity requirements—publication of notice, registrar’s certificate or license, mutual consent, absence of prohibited degrees, and celebration by a recognized officiant in a licensed venue—reflect procedural formalism designed to create certainty and protect parties’ rights through documentation. 

More significantly for property purposes, statutory marriage imports common law and equitable principles that recognize individual property rights and beneficial ownership based on contribution. This framework has enabled Nigerian courts to develop jurisprudence protecting spouses who contribute to property acquisition, even non- financially. The Court of Appeal’s recognition in Essien v Essien⁴ that domestic contributions can establish beneficial interests represents a progressive departure from rigid financial contribution requirements. Similarly, Oghoyone v Oghoyone⁵ demonstrates judicial willingness to invoke fairness principles in property adjustment, granting courts considerable discretion to redistribute assets upon dissolution. This equitable flexibility theoretically protects economically vulnerable spouses, though practical limitations remain in proving non-financial contributions. 

2 Marriage Act, Cap M6 LFN 2004. 

3 Matrimonial Causes Act, Cap M7 LFN 2004. 

4 Essien v Essien (2009) 9 NWLR (Pt 1146) 306 (CA).

1. Customary Marriage 

Customary marriage presents a contrasting paradigm. Rather than uniform statutory rules, it encompasses diverse ethnic practices regulated by native law and custom, subject only to broad statutory controls under the Evidence Act⁶ and State Customary Court Laws. Validity depends not on state registration but on compliance with community-specific rituals: consent of extended families, bride price payment, and traditional ceremonies. These requirements vary significantly across Nigeria’s ethnic landscape. This diversity extends critically to property rights. Unlike statutory marriage’s equitable principles, customary marriage property rules reflect the ethnic custom governing the union. In many communities, property acquired during marriage presumptively belongs to the husband, with wives’ ownership rights severely circumscribed or entirely absent. The Supreme Court’s affirmation in Enekwe v Enekwe⁷ that courts will uphold native customs—provided they satisfy the repugnancy test and do not conflict with statute—entrenches this variability, leaving married women’s property rights dependent on which ethnic group’s customs apply. 

1. Key Distinction 

The divergence between these marriage systems transcends ceremonial differences. At its core fundamental conflict between legal regimes governing property rights. Statutory marriage operates within a framework of individual property rights, equitable principles, and judicial discretion to redistribute assets based on contribution and fairness. Customary marriage subjects property rights to ethnic customs that often privilege male ownership and deny women independent economic existence. This disparity means that a woman’s property rights depend less on her contributions or needs than on the type of ceremony that formalized her marriage—an arbitrary distinction with profound material consequences. The coexistence of these incompatible systems raises urgent questions about legal coherence, gender equality, and whether Nigeria’s constitutional commitment to non-discrimination can accommodate customs that explicitly subordinate married women’ s economic interests. 

5 Oghoyone v Oghoyone (2010) 3 NWLR (Pt 1181) 371 (CA). 

6 Evidence Act 2011. 

7 Enekwe v Enekwe (1964) 1 All NLR 102 (SC).

Property Rights During Marriage 

1. Under Statutory Marriage 

Statutory marriage in Nigeria follows a separate property regime, meaning each spouse retains ownership of property acquired before or during marriage unless they agree otherwise. Section 72 of the Matrimonial Causes Act allows courts to adjust property rights on divorce but does not create automatic joint ownership. To ensure fairness, courts increasingly apply resulting and constructive trusts to recognize beneficial interests not reflected in legal title, especially where assets are registered solely in the husband’s name. In Essien v Essien, the court affirmed that non-financial contributions—such as childcare, homemaking, and domestic labour—can establish enforceable property interests. Oghoyone v Oghoyone further illustrates the courts’ willingness to use equitable principles to achieve just outcomes. Additionally, the Married Women’s Property Act 1882 preserves married women’s contractual and proprietary autonomy, allowing them to own and manage property independently of their husbands. Together, these principles make statutory marriage far more protective of women’s economic rights than customary marriage. 

1. Under Customary Marriage 

Customary marriage presents a starkly different legal landscape shaped by ethnic- specific norms rather than uniform statutory rules. The governing native law and custom varies significantly across communities, but patriarchal property norms predominate. Many customary systems vest ownership and decision-making authority exclusively in husbands, relegating wives to dependent status with severely circumscribed independent property rights. The default position under numerous customs holds that property acquired during marriage belongs solely to the husband, regardless of the wife’s contributions. This presumption operates unless a specific ethnic custom provides otherwise—a burden wives rarely can satisfy given the historical male-dominated interpretation and enforcement of customary norms. The Supreme Court’s affirmation in Enekwe v Enekwe that customary rules remain binding absent repugnancy or statutory incompatibility effectively entrenches these discriminatory outcomes, placing women at the mercy of traditions that deny their economic contributions recognition. practice of bride price payment carries symbolic and practical implications beyond marriage formation. While contemporary customary practices show some evolution, particularly in urban centers and educated families, the fundamental gender hierarchy persists more rigidly in customary marriage than instatutory frameworks.

PROPERTY DISTRIBUTION UPON DIVORCE 

In Nigeria, the distribution of property upon the dissolution of a statutory marriage is guided primarily by the Matrimonial Causes Act (MCA). Unlike some jurisdictions with rigid community property or equal division rules, the Nigerian legal framework grants courts significant discretionary power—a flexibility that theoretically enables contextual justice but simultaneously creates uncertainty and invites inconsistent application. This judicial discretion embodies both the strength and weakness of Nigeria’s approach to matrimonial property distribution. ⁸ 

1. Statutory Marriage Dissolution  

Section 72 of the MCA empowers the court to make orders regarding property settlements that it considers “just and equitable.”⁹ This deliberately open-ended standard rejects formulaic division in favour of case-specific fairness. The guiding principle is not mathematical equality but contextual equity, requiring courts to weigh diverse factors to determine proper distribution. ¹⁰ However, this broad discretion raises critical questions: What constitutes “just and equitable” in practice? How consistently do courts apply these amorphous standards? And does flexibility inadvertently disadvantage economically vulnerable spouses who cannot predict outcomes? 

• Factors Considered by the Court 

1.Financial and Non-Financial Contributions: 

The court mandate extends beyond quantifiable financial input—such as salary contributions or direct property purchase payments—to encompass indirect economic contributions that traditional property law ignores. This broader conception recognizes that a spouse who manages household finances, pays daily expenses, or enables the other’s career advancement through domestic support makes genuine economic contributions deserving legal recognition. ¹¹ Courts possess the conceptual framework to acknowledge indirect contributions but often fail to translate acknowledgment into meaningful financial awards, particularly where wives cannot produce documentary evidence of their household management or opportunity costs from foregone careers. 

__________________ 

8Ajunwa & Co, ‘Settlement of Property as an Ancillary Relief Under the Matrimonial Causes 

Act (MCA)’ (Ajunwa & Co Blog, n d) https://ajunwaandco.com/settlement-of-property-as-an-ancillary-relief-under-the-matrimonial-causes-act-mca/ accessed 24 November 2025. 

9Matrimonial Causes Act (Nigeria), s 72. 

10 Egemonu, Critical Analysis of Laws Relating to Maintenance and Settlement of Property (CUAB University 2023) https://cuab.edu.ng/wp-content/uploads/2023/09/13.-Egemonu-Critical-Analysis-of-Laws-Relati ng-to-Maintainance-and-Settlement -of-Property.pdf accessed 24 November 2025. 

11Ibid; see also Tribune Online, ‘Right of Married Women to Share in the Family’s Property’ (Tribune Online, n d) https://tribuneonlineng.com/right-of-married-women-to-share-in-the-familys-property/ accessed 24 November 2025

2. Homemaking and Childcare Recognized: 

Contemporary jurisprudence now acknowledges non-monetary contributions—homemaking, childcare, household management, and emotional support—previously dismissed as natural wifely duties without economic value.¹² While this recognition is progress, it often fails to translate into proportionate awards, as courts may still undervalue domestic labor. The real challenge is not only acknowledging these contributions but developing principled methods to quantify and reflect them fairly in property division. 

3. Children’s Welfare: 

Children’s well-being remains a paramount consideration in Section 72 settlements.¹³ Courts frequently structure property awards to secure stable housing or financial support for children. Although necessary, this child-centered approach can disadvantage the primary caregiver (typically the mother) when property allocated “for the children” remains under the father’s control or ends when the children reach adulthood, leaving the caregiver with limited long-term security. 

4. Duration of Marriage and Parties’ Needs: 

Marriage length influences the extent of financial interdependence and reasonableexpectations.¹⁴ Courts also consider each party’s current and future earning capacity. However, this approach can disadvantage women whose careers were interrupted for childcare—losses that persist regardless of marriage duration—yet are insufficiently compensated under duration-based assessments. 

5. Courts Can Order Property Transfers, Sale, or Settlement: 

The MCA provides broad remedial powers, allowing courts to transfer property, order sales, or award lump-sum payments.¹⁶ This flexibility supports tailored solutions, such as giving the matrimonial home to the custodial parent. However, without clear guidelines, similar cases can produce inconsistent outcomes, increasing litigation costs and diminishing the assets available for distribution. 

12Matrimonial Causes Act (Nigeria), s 72. 

13Egemonu, Critical Analysis of Laws Relating to Maintenance and Settlement of Property (CUAB University 2023) https://cuab.edu.ng/wp-content/uploads/2023/09/13.-Egemonu-Critical-Analysis-of-Laws-Relati ng-to-Maintainance-and-Settlement -of-Property.pdf accessed 24 November 2025. 

14Ibid; see also Tribune Online, ‘Right of Married Women to Share in the Family’s Property’ (Tribune Online, n d) https://tribuneonlineng.com/right-of-married-women-to-share-in-the-familys-property/ accessed 24 November 2025. 15Matrimonial Causes Act (Nigeria), s 72.

Dissolution of Customary Marriage 

1. Customary Marriage Dissolution 

Customary marriage dissolution in Nigeria operates under diverse native laws, creating significant uncertainty and unequal outcomes. Unlike statutory divorce, which follows uniform legal standards, customary dissolution varies across ethnic groups: some require mutual family consent, while others permit unilateral repudiation by the husband, reinforcing gender hierarchy. Property division similarly follows patriarchal norms. The Supreme Court’s stance in Enekwe v Enekwe¹⁶—upholding customary practices unless repugnant or inconsistent with statute—allows discriminatory outcomes to persist. 

Customary law rarely recognizes non-financial contributions such as child care or domestic labor. The return of bride price, affirmed in Mojekwu v Mojekwu¹⁷, is often required to validate dissolution, trapping women whose families cannot repay it. Customary courts, operating under State Customary Court Laws¹⁹, have limited jurisdiction and cannot apply equitable principles or redistribute property beyond customary rules. 

In contrast, statutory marriage dissolution offers stronger protections. Courts can recognize beneficial interests arising from domestic contributions, as seen inEssienvEssien²². This creates a stark hierarchy: two women with identical marital contributions receive radically different outcomes depending solely on marriage type. Most women, married under customary law, are channeled into a system that denies their economic contributions, producing a form of legal apartheid in matrimonial property rights linked to socioeconomic status. 

16 Enekwe v Enekwe (1964) 1 All NLR 102 (SC). 

17. Mojekwu v Mojekwu (1997) 7 NWLR (Pt 512) 283 (CA). 
18. Customary Court Laws of various States (e.g., 22. Customary Court Law of Lagos State 2015). 
19. 19. Essien v Essien (2009) 9 NWLR (Pt 1146) 306 (CA).

Inheritance and Succession Rights 

1. Under Statutory Marriage 

Inheritance in statutory marriages is governed by codified laws—primarily the Administration of Estates Law (AEL) of each state and, in the FCT, the Administration of Estates Act²⁰. These statutes create clear and predictable intestate succession rules that prioritize surviving spouses, giving widows enforceable rights rather than leaving them at the mercy of customary norms. Depending on the specific State AEL, a surviving spouse may inherit alongside children, parents, or siblings, reflecting the legal view that marriage generates reciprocal obligations that extend beyond death. Statutory marriage also operates within a system that upholds testamentary freedom under the Wills Act 1837 (in the FCT) and State Wills Laws, provided formal requirements—writing, signing, and proper witnessing—are met.²¹ Courts intervene only where wills fail duet undue influence, lack of capacity, or defective formalities. This autonomy enables spouses to provide for each other beyond statutory entitlements. Importantly, statutory succession guarantees gender-neutral inheritance for children, and discriminatory customary rules cannot override statutory protections. Courts apply these statutory regimes strictly to ensure equality. However, these protections work only when certain conditions are met: the deceased must have contracted a Marriage Act marriage, the estate must be formally administered through probate, and the widow must have the knowledge and resources to assert her rights—factors not always present in practice. 

1. Under Customary Law 

Customary inheritance in Nigeria is largely shaped by patrilineal traditions that marginalize women, granting male children—especially the eldest son—primary or exclusive rights to the estate. Widows and daughters often receive nothing beyond temporary, revocable occupation rights. The Igbo oli-ekpe custom, which excludes women from inheritance, illustrates this inequality. Nigerian courts have challenged these discriminatory norms: in Mojekwu v Mojekwu²², the Court of Appeal invalidated the oli-ekpe custom as discriminatory, and the Supreme Court in Ukeje v Ukeje²³ held that no woman can be denied inheritance on the basis of gender, affirming this protection under section 42 of the 1999 Constitution²⁴. 

However, despite these progressive rulings, discriminatory practices persist, especially in rural areas where customary norms remain influential. Inheritance matters are often resolved informally within families, bypassing courts and continuing to apply invalid customs. Many widows lack awareness of their rights, resources to litigate, or confidence to challenge their husband’s family due to cultural pressure and fear of social backlash. Judicial decisions alone therefore remain insufficient to eliminate entrenched discriminatory inheritance customs.

1. Consequences 

Despite undeniable judicial progress in articulating protective principles, many widows under customary law continue facing dispossession, exclusion from family property, and acute economic vulnerability, especially in rural areas where customary norms remain socially dominant. Statutory marriage offers far greater practical protection because widows possess clear statutory rights, readily enforceable in courts applying established legal principles, with gender equality constitutionally guaranteed and institutionally embedded in statutory succession frameworks. The disparity reveals that legal reform through judicial decisions, however progressive, cannot alone overcome deeply embedded cultural practices absent broader social transformation, effective enforcement mechanisms, and accessible legal services for vulnerable widows. 

20 Mojekwu v Mojekwu (1997) 7 NWLR (Pt 512) 283 (CA). 

21 Ukeje v Ukeje (2014) 11 NWLR (Pt 1418) 384 (SC). 

22 Constitution of the Federal Republic of Nigeria 1999 (as amended). 

23 Administration of Estates Law of various States (e.g., Lagos State, Cap A3, Laws of Lagos State 2015). 24 Wills Act 1837; Wills Laws of various States.

Reform Recommendations 

1. Legislative Action 

Comprehensive legislative reform is essential to harmonize the fragmented rules governing property rights across statutory and customary marriages—a fragmentation that currently produces arbitrary and discriminatory outcomes based solely on marriage type. Federal and State legislatures should enact a unified Marital Property Act establishing minimum standards for property distribution applicable regardless of marriage ceremony, ensuring that all Nigerian women enjoy baseline protections rather than facing vastly different outcomes depending on whether they married under the Marriage Act or customary law. Such legislation must explicitly recognize non-financial contributions—homemaking, childcare, household management—as creating cognizable property interests, codifying the equitable principles that courts already apply inconsistently in statutory marriage cases like Essien v Essien 

25. Statutory codification would remove judicial discretion’s

unpredictability and establish clear entitlements enforceable without expensive case-by-case litigation proving contributions that should be presumptively recognized. Statutory intervention isequally necessary to abolish discriminatory customary inheritance practices comprehensively. While26 _____judicial invalidation

courts have struck down specific customs—most notably in Ukeje v Ukeje operates incrementally, custom-by-custom, leaving discriminatory norms intact until challenged inappellate litigation that most widows cannot afford. Legislatively codifying gender-equal inheritance27 would provide immediate, universal 

standards consistent with section 42 of the 1999 Constitution 

protection rather than requiring each affected woman to litigate her rights individually. Legislation would also bind customary courts that currently resist applying Supreme Court precedents they viewas culturally alien impositions. 

1. Judicial Measures 

The judiciary must abandon its equivocation and consistently apply constitutional equality provisions to invalidate discriminatory customs, regardless of their cultural significance or historical pedigree. Courts should confidently strike down customs contravening section 42 or the repugnancy28, rather than deferring to tradition through

doctrine, as demonstrated in Mojekwu v Mojekwu 

narrow interpretations that preserve discrimination under cultural sensitivity rhetoric. Strengthening jurisprudence recognizing women’s beneficial interests—especially in customary marriage contexts where such recognition remains rare—would help close the protection gap between marriage types. Courts must develop clear doctrines enabling wives in customary marriages to establish property claims based on domestic contributions, mirroring the resulting and constructive trust principles applied in statutory marriage cases. This requires judicial willingness to impose equitable principle son customary property disputes despite customary law’s silence or hostility toward such concepts. Clear, unified precedents would reduce the inconsistencies exemplified by the Mojekwu litigation, 29 undermined the Court of Appeal’s

where the Supreme Court’s criticism in Mojekwu v Ejikeme 

progressive invalidation of discriminatory customs, creating confusion about whether constitutional equality genuinely supersedes tradition. 

_________________________ 

25 Essien v Essien (2009) 9 NWLR (Pt 1146) 306 (CA). 

26 Ukeje v Ukeje (2014) 11 NWLR (Pt 1418) 384 (SC). 

27 Constitution of the Federal Republic of Nigeria 1999 (as amended). 

28 Mojekwu v Mojekwu (1997) 7 NWLR (Pt 512) 283 (CA). 

29 Mojekwu v Ejikeme (2000) 5 NWLR (Pt 657) 402 (SC).

CONCLUSION 

Nigeria’s dual marriage system—customary and statutory—creates a structural inequality that determines women’s property rights not by their contributions but by the type of ceremony they undergo. Women married under customary aware treated as dependents rather than partners, with their domestic labour generating no legal property

interests. As a result, many receive little or nothing during divorce and face dispossession during widowhood, despite constitutional guarantees under Sections42and 43. Although courts have occasionally struck down discriminatory customs, inconsistent decisions and weak enforcement allow harmful practices to persist. 

This gap reflects a deeper conflict between constitutional supremacy and cultural traditions. Legal pluralism currently enables the evasion of equality rights, leaving millions of women vulnerable. Real reform requires a unified Marital Property Actensuring equal rights to marital property regardless of marriage type, gender-equal inheritance laws, stronger judicial enforcement, broader legal aid, and cultural engagement to shift harmful norms. Nigeria must choose between maintaining a discriminatory dual system or enforcing constitutional equality for all married women. 

BIBLIOGRAPHY 

Cases 

Enekwe v Enekwe (1964) 1 All NLR 102 (SC). 

Essien v Essien (2009) 9 NWLR (Pt 1146) 306 (CA). 

Oghoyone v Oghoyone (2010) 3 NWLR (Pt 1181) 371 (CA). 

Mojekwu v Mojekwu (1997) 7 NWLR (Pt 512) 283 (CA). 

Mojekwu v Ejikeme (2000) 5 NWLR (Pt 657) 402 (SC). 

Ukeje v Ukeje (2014) 11 NWLR (Pt 1418) 384 (SC). 

Legislation and Statutory Instruments 

Marriage Act, Cap M6 LFN 2004. 

Matrimonial Causes Act, Cap M7 LFN 2004. 

Matrimonial Causes Act (Nigeria), s 72. 

Evidence Act 2011. 

Constitution of the Federal Republic of Nigeria 1999 (as amended). 

Administration of Estates Law of various States (eg Lagos State, Cap A3, Laws of LagosState2015). 

Customary Court Laws of various States (eg Customary Court Law of Lagos State 2015). Wills Act 1837; Wills Laws of various States. 

Secondary Sources (Books, Journal Articles, Websites, Reports)

Tunde Adisa & Co, ‘Property Ownership in Nigeria – Rights of Married Women’ (Tunde Adisa & Co, n.d) 

https://tundeadisa.com/media_insights/property-ownership-in-nigeria-rights-of-married-women/ accessed 24 November 2025. 

Ajunwa & Co, ‘Settlement of Property as an Ancillary Relief Under the Matrimonial Causes Act (MCA)’ (Ajunwa & Co Blog, n.d) 

https://ajunwaandco.com/settlement-of-property-as-an-ancillary-relief-under-the-matrimonial-causes-act-mca/ accessed 24 November 2025. 

Egemonu, Critical Analysis of Laws Relating to Maintenance and Settlement of Property (CUAB University 2023) 

https://cuab.edu.ng/wp-content/uploads/2023/09/13.-Egemonu-Critical-Analysis-of-Laws-Relati ng- to-Maintainance-and-Settlement-of-Property.pdf accessed 24 November 2025. Tribune Online, ‘Right of Married Women to Share in the Family’s Property’ (Tribune Online, n.d) https://tribuneonlineng.com/right-of-married-women-to-share-in-the-familys-property/ accessed24 November 2025.