|
Getting your Trinity Audio player ready...
|
Recently, social media was abuzz after news circulated that the late Emmanuel Iwuanyanwu, the then-president of Ohanaeze Ndigbo, had stipulated in his will that his wife would be barred from remarrying as part of the criteria to get part of his properties.
While some people are concerned that such a decision is unjust, others believe that the late leader of the popular Igbo socio-cultural group had the right to decide how he wanted his family affairs to be managed.
As part of DUBAWA’s commitment to media and information literacy and the promotion of factual information, we dissect the issue and the position of the Nigerian law on it.
The legality, enforceability or otherwise of remarriage clause
To begin with, it is noteworthy that Nigerian laws permit property owners (testators) to dispose of their assets as they see fit in their will. This concept, referred to as testamentary freedom, is the right to allocate one’s assets as one likes. However, this is not without limitations.
Having said that, a clause stating that a wife must not remarry to be eligible for her husband’s inheritance is invalid in the face of Nigerian law. Such a clause contradicts the freedom from discrimination granted under Section 42 of the 1999 Nigerian Constitution.
A review of academic studies and interviews with legal experts by our researcher show that this provision is enacted to prevent restrictions or deprivations that may be imposed on people due to their sex, religion or background among others.
Oftentimes, Nigerian courts have also upheld the rights of women to inheritance. By implication, this clause of remarriage before a woman can inherit property is unconstitutional. To solidify this stance, DUBAWA scoured through court cases such as Ukeje vs. Ukeje and Mojekwu vs. Mojekwu.
Although the two cases do not have the same issue of remarriage, we discovered that the issues for determination there also boil down to women’s rights to inheritance, and the court ruled in favour of the women as guaranteed by the nation’s constitution.
The position of lawyers
Moshood Ibrahim, an Ilorin-based legal practitioner, told DUBAWA that the remarriage clause that excludes a woman from inheritance unless she does not remarry cannot be enforced in court as it is against her right to freedom from discrimination.
“For this purpose, the woman can challenge this remarriage clause in the court of law to get what statutorily belongs to her,” he said.
Another legal basis here, he said, is Section 34 of the same constitution that protects the right to personal liberty and dignity of a person.
He further explained that in any marriage conducted under the Marriage Act in Nigeria, the spouse becomes the first person to inherit the property when either of the other spouses dies. When death occurs, the contract is stopped, and the other party has the right to remarry and inherit.
“Thus, if you write a Will and exclude your wife, that Will won’t be enforceable in court as long as the marriage is still valid as of the time of death.
“Even if it’s the culture or belief of the husband, which dictates that his wife cannot inherit him if she remarries, it’s a gross violation of the constitutional provisions mentioned earlier,” he said.
Similarly, Hadiza Alfa, a lawyer in Kaduna State, said the clause allowing a woman who remarries to lose her inheritance can be challenged in court, given its contradiction to the principles of natural justice, equity, and public policy.
“Under the administration of estate law, any of the spouses is entitled to their inheritance,” she said.
According to the legal practitioner, testamentary freedom doesn’t mean the owner of a property can impose whatever condition they want on it; such a condition must comply with the provisions of the constitution to be valid, enforceable and executable.
“Meanwhile, this condition that a woman must not remarry or else they won’t be given inheritance violates women’s rights. It’s both unconstitutional and not enforceable,” she added.
Conclusion
Findings by DUBAWA show that Nigerian law generally protects women’s rights to inheritance. As such, a condition that a woman must not remarry before her deceased husband’s property can be given to her violates women’s rights under the law. Such a clause is not only unlawful and unenforceable, but it can also be challenged in court to get the right justice.
