Lecture delivered at a conference for Delta State Women in Lagos in 2010
Ebele Irabor LL.B(HONS), B.L
The Chairman of this occasion, distinguished Ladies and Gentlemen.
I will like to commence by saying thank you to the organizers of this conference, for the honour bestowed upon me to speak with you all this afternoon. The issue of the rights of women has always been one of great interest to me for I am saddened by unjustness of the treatment of us women by our culture. Culturally, women are often seen as chattels, owned by men, to be treated as they will. So much so, that in some parts of this country, when a man dies, his brother is said to inherit his widow or widows as well as his other properties, all without cognizance of the woman’s consent.
One of my major concerns is the harsh, dogmatic and rigid interpretations of the customary law in different parts of our country. These interpretations provide cover for many injustices, which cannot be justified under a religion, equity or even common sense towards the vulnerable amongst us. The relevance of a woman in most of these interpretations is placed at a low ebb especially when it comes to determining the fate of the family at the demise of the man. Close study indicates, however, that many of these interpretations/beliefs of native customs arise from prejudice and ignorance of the true precepts of the original custom.
I have found that these conditions continue to exist till this day essentially because women are generally ignorant of existing laws which protect them against such treatment.
Well, the good news is that there are laws and we do have rights.
We have the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa which was adopted by Nigeria in July 2003 during the 2nd Ordinary Session of the African Heads of States in Maputo, Mozambique. It was considered by women all over the world, as a decisive step towards securing a legal framework for the protection and advancement of womens’ rights in Africa. Currently, 40 countries have signed the Protocol and 22 have ratified it, which enabled it come into force in November, 2005. This wide and swift ratification underscores the importance and the concern these Member States attach to the injustices suffered daily by African women. These injustices take the form of physical and mental violence, social, economic and cultural rights abuses, exploitation of vulnerabilities, and the discrimination and disadvantages arising as a consequence thereof.
Prior to the enactment of the law on Widows Rights in Anambra State, the reasoning within the polity had been that there was no law on ground protecting the right of widows. This presumption is however rebuttable. This is because of the ratification by Nigeria of the Bill of Rights (the Magna Carter), the Universal Declaration on Human Rights, the Covenant on Economic and Social Rights, the Covenant on Civil and Political Rights and the African Charter on Human and People’s Right. All these Charters provide for the protection of a class of people against the violation of their rights. An evaluation of these laws vis-à-vis the rights of widows is been attempted below.
We of course have the Nigerian Constitution of 1999 which protects the sanctity of the human person and recognises human dignity. Though we do not have any specific laws on the protection of widows, Nigeria by virtue of being a party to some international charters on Women and Human Rights as stated above, is bound by the provisions of these Charters.
The Wills Laws of the various States as well as the Administration of Estates Laws also of the various states (which are essentially similar) which I shall discuss shortly in greater detail, have specific provisions for inheritance in law. I am aware that we are not all lawyers here today and so I shall spare you the boredom of legalese language and get to the point.
Section 49 of the Administration of Estate Law of Lagos State 2005 for instance grants absolutely to the surviving wife the residuary estate of her husband where there is no issue. This piece of legislation defeats the otherwise repugnant provision under customary law where such a widow would have been considered irrelevant in the scheme of things pertaining to her husband Estate for the mere fact that she had no issue. Whether or not she contributed to the wealth acquired by the husband is irrelevant. Also under subsection (2) of the same section 49, even where there are issues the widow is still entitled to the personal chattels of her husband absolutely.
Similarly under Section 2 of the Wills Law of Lagos State, where a husband in a Will fails to make reasonable financial provision for his wife in his Will, the Wife can apply to the Court within a period of Six months from the grant of the probate for such provision to be made within the Will. Reasonable financial provision would in the circumstance mean such financial provision as it would be reasonable in all circumstance of the case of the Wife to receive.
This paper shall attempt to draw attention to and inform you of the rights of a woman after the demise of her husband. I shall seek to also advise you on how to manage your joint assets during both your lifetime and thus forestall acrimony with in-laws upon the demise of one party to a marriage. I shall explain the differences of a woman’s right under a customary marriage as opposed to a legal marriage under the Marriage Act with a view to highlighting areas of common concern, and especially those customary concepts and legal principles that lend credence to the provisions adopted by the African Union, for the protection of women in particular.
What determines the rights of a widow upon the demise of her husband is entirely dependent on whether or not he has a Will and if he doesen’t, then it is entirely dependent on the type of marriage she had. If she was legally married to her husband under the Marriage Act, that is, if she married at the Marriage Registry or if at church she signed a Marriage Register which indicated on it that it is a marriage under the Marriage Act, then she has a legal marriage. If the only marriage ceremony she conducted with her husband was a traditional Native Law and Customary marriage, then she has a native law marriage.
If a man dies and leaves a valid Will behind, his estate will be devolved in strict compliance with his wishes, so long as those wishes are legal. So if for instance, he decides to leave his entire property to his mistress and child born out of wedlock in his Will, so be it. It is up to his widow to try to have such a Will set aside in court by proving that the Will is invalid. Remember S.2 as explained above, allows a widow to go to court and seek to have a part of her husband’s estate given to her, where she has been left out of his Will. A widow can also try to prove ‘Duress’, which means that the mistress put the late husband under pressure and he wasn’t acting himself, or if the widow can prove that her husband was mentally incapacitated when he wrote his Will. This is a lengthy process and would usually delay the implementation of the Will.
If there is no dispute, the Executors of the Will, who are the people the husband has chosen to implement his Will after his death, will apply to the Probate Registry of the High Court for a grant to allow them execute the Will in accordance with the wishes of the deceased. Please note, that in instances where the Executors have not conformed to the wishes of the deceased, the beneficiaries have a right to sue the Executors and the court will order compliance of the wishes of the Will.
If a man dies without a Will, then he is said to have died intestate. What this means is that his properties cannot be shared until a court order is obtained granting the administration of his estate to court appointed Administrators. It is usual for the wife or family members to apply to be Administrators of such estates and if granted, the Administrators have a mandate to divide the estate amongst the beneficiaries as soon as is practical. In practice, this is not usually a smooth process for if the deceased was polygamous, it is not unusual to have the wives and children fight over who the administrators would be. This can involve a very lengthy court case, in which time the properties are stolen by both beneficiaries, family members and indeed, strangers.
This process is achieved by the beneficiaries such as the widow and her children, applying to the Probate Registry of the High Court for Letters of Administration over the estate of the deceased. Once granted, the Administrators may then decide amongst themselves on how best to divide the deceased’s properties. Where there is a dispute, or objection by a close family member as to the choice of Administrators of the estate, the aggrieved party may file an objection at the High Court, where the Court would then decide who it feels is best suited to administer the estate in the best interest of the beneficiary. An Administrator may be any adult of sound mind and in practice, usually the widow and adult children of the deceased or close friends or relatives of the family.
MARRIAGE UNDER NATIVE LAW & CUSTOM
In this situation, a widow’s rights to inheritance or to her husband’s estate or property upon his demise is entirely dependent on the customary laws of her husband’s tribe. So for instance, if he was Yoruba, she is not entitled to any of her husband’s property but her children would be. Further, with the Yorubas, the head of the family, in the interest of fairness and justice, would decide what sharing formulae to adopt for sharing the estate of a deceased relative. The family head could thus choose formula called, ‘ori-ojori’ i.e. all heads are equal, or under a formular called, ‘idi-igi’, which would apply to a polygamous setting where property is divided according to each branch under a mother-head.
In our own native Ika land, a widow is not entitled to her husband’s estate but her children are, with the first son of course inheriting the main house the family lived in. So what this means is that, if an Ika man had several wives, the first son who inherits the family home has a discretion to send all the wives out of the house. Recent case judgments at the Customary courts have been inconsistent, as some say that the house is to be held by the first son in ‘trust’ for the family whilst some say that it is his entirely. The rest of the property is shared between both the first son and the rest of the children. I guess, that this is probably why traditionally there is a preference for male children, so at least, the mother of a male child has some succor from her son’s inheritance.
MARRIAGE UNDER THE MARRIAGE ACT
This is also referred to as a legal marriage.
Once a man has a legal marriage, any other subsequent marriage unless he is divorced, is illegal, null and void. So in law, there can only be one wife. Needless to say, a legally married woman has more rights over her husband’s estate upon his demise.
Under the legal marriage, if a man leaves a Will, his wishes under his Will, will be respected. However, if he dies intestate, without a Will, his legal wife is automatically entitled to 40% of his estate, and all his children, in and out of wedlock, share in the remaining 60%. In Nigeria, a child is legitimate once the father of the child acknowledges that it is his child. Acknowledgement is displayed by proving that the deceased paid for the upkeep and maintenance of the child, or that the child lived with the deceased as his child.
The best way to manage joint assets between a woman and her husband during their life time to forestall acrimony with in-laws at the demise of either the husband or the wife is to ensure that these assets are acquired in the name of both of them as joint owners. Even where a joint account is to be kept for the benefit of the couple the same principle should be adopted. More often than not a woman would be cheated off her full entitlement from these assets just because the husband’s name is ascribed to such property as the owner.
It should be pointed out that to insist on this point does not as most people would want to think portray the woman as a greedy and selfish person. Such thought have no place within common sense but only premised on sentiments because when the chips are down the true picture of the reality on ground would make its relevance clear.
WHAT TO DO
- Be as much a part of your husband’s life as possible, so you are aware of his properties.
- If you are able to, get him to include your name or your children’s on all property titles.
- As much as possible, convince him to write a Will as this will ensure that it is you and your children who will benefit from his estate. I do realize that in our society, writing a Will is often seen as a prelude to death, trust me it isn’t. Please ensure that the Will is drafted by a competent lawyer so that there will be no lapses that could lead to a Court of law declaring the Will as invalid, null and void.
- If he has a Will, ensure that it is regularly updated with any new acquisitions.
- Immediately after the funeral, contact a lawyer for proper legal advice. Always get a second legal opinion.
- As much as possible, ensure that you are legally married to your husband. In a situation where you are not the legal wife, please ensure that he writes a Will and includes you and your children in it.
I thank you all for your patience and for the opportunity you have given me to discuss this topic (which I hold so dearly as a woman) with you.