Comfort Zone: Ask a Lawyer – Joint Property in Polygamous Marriage

SOCIETY 05 Jul 2018
Comfort Zone: Ask a Lawyer – Joint Property in Polygamous Marriage

By Comfort Mussa

Question: Dear Lawyer,
I am a 26 years old woman. I am getting ready for my wedding next month. I will be second wife to a man I love. My religion permits polygamy and I have no problem being second wife.
My fiancé and I have talked about signing for joint property during our court wedding. I am having second thoughts about the joint
property clause. I have my own shop and make my money. Does joint property mean that the first wife will be entitled to my earnings?
What is really the meaning of joint property especially in polygamous setting?
A.S – Cameroon
Dear A.S
Assuming you are domiciled within the Republic of Cameroon, which is not only bilingual but bi-jural, I am obliged for the purpose of clarity to answer your question taking into consideration the peculiarities of our country and to benefit a wider audience.
In both legal systems of Cameroon (Civil law system which operates in the French speaking regions and the Common law system which operates in the English speaking regions) there are two types of marriages recognized by the law. Monogamy which means one man marries one wife to the exclusion of all others and Polygamy which means one man marries two or more wives to the exclusion of all other men. Mention of the type of marriage must be made on the marriage certificate.
The marriage settlement or contract is where your worry arises. There are two types of marriage settlements, joint property and separate property. Now what you choose depends on where you are domiciled. Domicile means which of the legal systems applies to you based on where you are resident or where you decide to celebrate your marriage.
Generally, separate property means that each spouse acquires and holds property in his personal name separately from the other. For example. It’s my car, your house, my money etc. cannot be used under separate property regime. No spouse has the right over the property or belongings of the other unless that spouse can proof contribution towards its acquisition.
Joint property on the other hand takes effect from the date of marriage. This means all property that was previously acquired before marriage remains the personal property of that spouse. However, all property acquired after marriage becomes jointly owned. This does not include money (incomes and earnings remain separately owned) except for money put into a joint account. Joint property doesn’t take into consideration the percentage of the contribution of each spouse towards the acquisition of that property. For example. If a wife after receiving her salary decides to buy a car for she and her husband, that car becomes joint property though it was purchased solely by the wife. What matters most is the intention towards the acquisition of the property.
Common law, does not know joint property. However, we have this conflict of laws with our Civil Status Ordinance of 1981 (as amended). The civil status ordinance makes it mandatory for the parties to a marriage to choose what type of marriage settlement shall apply to them (joint or separate property) not taking into consideration the position of the Common law. And it is this law which regulates marriage throughout the national territory. Yet its interpretation under these two legal systems produces different effects.
If you are resident in the Anglophone regions and/or you intend for your marriage to be celebrated there, this is what shall obtain. The courts have generally interpreted that polygamy goes with separate property even when the couples chose otherwise. The reason for this is because polygamy is regulated by customary law. And under these laws polygamy went with separate property. Each wife usually had a separate farm, kitchen, room, house etc. from the other wife. Property was never jointly held.
Therefore, according to this interpretation given by the courts, if you and your husband to be choose polygamy with joint property, it shall not hold. It shall be always construed to mean separate property.
If you are resident in any of the French speaking regions of Cameroon and/or you intend for your marriage to be celebrated there, then it is possible to get married under the polygamy regime with joint property. Take note that the joint property takes effect as from the date of marriage. So all property acquired after your marriage shall become jointly owned. Excluding your incomes and earnings.
If the first wife married with separate property, then she shall be unable to benefit from the joint property of her husband. However, if the first wife married with joint property, she would always have a share in her husband’s joint property as well.
Let me be clearer. If you and your husband bring money together and purchase a house in both your names, let’s assume in the proportion 50:50, and your husband had contracted his first marriage with separate property, then his first wife shall not benefit in her husband’s joint property. However, if the first marriage was contracted with joint property, then the first wife shall benefit from 50% of her husband’s share of that property. Flowing from the above example, where your husband holds 50% of the house which you both jointly acquired, his first wife shall hold 25% of that property.
Barrister Joyce Nyamboli was called to the Bar in 2008. She is developing a broad civil litigation practice in family law, corporate law , with a keen interest in human and women’s rights. She is noted for her genuine passion for justice and professionalism. Joyce is based in the UK where she’s a Chevening scholar.

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