Buying Property in Another’s Name: Has Hakimi Successfully Hidden His Wealth?. By Ajibola Bello
It is not unusual for the divorce between celebrity couples to make the news and become the talk of the town. However, one aspect of the divorce that is often talked about especially in the western world is the portion of the husband’s wealth which accrues to the wife upon dissolution of the marriage. As it is informally said, some women do cash-out of their marriages and this part of the cash-out made headlines when Billionaire, Jeff Bezos divorced his wife and paid about $38billion in divorce settlement to the wife. It was tagged the world’s biggest divorce settlement.
The most recent talked about divorce and failed divorce settlement which is the background to this write–up is that between Moroccan international and Paris Saint German (PSG) football star, Achraf Hakimi and his estranged wife, Hiba Abouk. It is no news that upon the wife filing for divorce and laying claim to half of his wealth, she was faced with a rather shocking revelation by the court that Hakimi’s net worth was insignificant as his properties are in his mother’s name. Which means she would not be “cashing-out” of the marriage.
The revelation unsurprisingly sparked reactions from various quarters and some persons consider the move by Hakimi to be quite smart. Considered smart perhaps in view of what the life of footballers who marry under a legal system that accords such circumstance of relinquishing a significant part of the footballer’s wealth to the woman. In this regard, the case of the Ivorian international, Emmanuel Eboue of Arsenal comes to mind. The said footballer, following his divorce in England became homeless and almost bankrupt. Another Zimbabwean footballer, Tendai Ndoro went bankrupt after losing all his properties to his ex-wife following their divorce. What was most striking about Tendai’s case was that he registered the properties in his wife’s name.
The foregoing narrative therefore forms proper background to evaluate the propriety of the action of Achraf Hakimi and lessons derivable therefrom. Most significantly, one question that comes to mind is, considering the principle of Trusteeship and the common law rule in relation to buying property in the name of another, can we really say that Hakimi’s property is safe in the hands of the mother. This write-up is not intended to justify Hakimi’s action nor to hold brief for Hiba. Rather, the objective is to have a legal evaluation of the consequential effect of the action from all angles.
THE RULE AS TO BUYING PROPERTY IN ANOTHER’S NAME:
What Hakimi did in buying property in the name of the mother isn’t particularly new and it is not illegitimate. We are only concerned with the fact that the buying in the mother’s name is considered a deliberate attempt to evade responsibility or deny Hiba benefit under his estate. However, when the money for the purchase of property is provided by a person who then buys in the name of another, the position of the law is that the person in whose name the property was purchased holds it in trust as it is said to be held for the benefit of the person who advanced the money. This is the general rule and applying it to Hakimi’s case, it means a presumption inures to the effect that since Hakimi is deemed to have provided the money for the purchase of all the properties in his mother’s name, the mother is presumed to be holding the property in trust.
This position of the law was laid down in the English case of Dyer v Dyer (1788) 2 COX Eq 98 and more recently, the Nigerian court reiterated the position in clearer terms when the Supreme Court held in MADU V. MADU (2008) LPELR-1806(SC) (Pp. 27 paras. B) that:
“The Court will impel or presume in a situation where a purchase of property is made in the name of another that that other holds the property for the benefit of the person who advanced money for the purchase of the property. The law, in such a situation, presumes that the intention was that the property should be held on trust by the third party transferee. I may go further to say that the same principle also applies where the purchase money was provided partly by the person to whom the property is transferred and partly by another or others. In such cases, the transferee holds the property in trust for all the persons who contributed to paying for it with each having beneficial interest proportionate to the amount of purchase money he advanced.” Per ADEREMI ,J.S.C.
Bearing the foregoing in mind, one is mindful that there are exceptions to the above general rule as in cases where the father buys the property in the name of the son or a husband buys property in the name of the wife. In such cases, there is presumption of advancement that the gift was intended to be for the person in whose name it was purchased notwithstanding the fact that the money was provided by another. These exceptions are quite reasonable as it seem only natural that a father or any person in loco parentis buys property as a gift to the child just as it seem only normal for a husband to by a property as a gift for the wife. See the case of Silver v. Silver (1958) 1 All E. R.523.
Although the presumption of advancement is rebuttable where there is express declaration of trust i.e. the person who advances the money and purchases in the name of another can state clearly in a document that the property bought in the name of another such as son or wife is intended to be held in trust.
At this juncture, it is imperative to quickly mention that while a man will be presumed to have made a gift to the wife where property was bought in her name, men should be aware that the converse is the case where the woman buys a property in the man’s name while she advances the money. What this means is that if a woman buys property in her husband’s name, the presumption is that it is not intended to be a gift to the man, but that the man holds the property in trust.
In the case of JOLUGBO & ANOR v. AINA & ANOR (2016) LPELR – 40352 (CA) (Pp 27 – 29 Paras A – D) the court unapologetically held that “The law also makes a distinction between the husband and the wife – when a wife buys a property, and conveys it in the name of her husband, there is no presumption of advancement in favour of her husband; he holds in trust for his wife”.
HIBA CAN STILL CLAIM PART OF HAKIMI’S WEALTH:
From the available judicial authorities considered, there is no presumption in favour of Hakimi having gifted all the properties bought in his mother’s name while advancing the money. Hakimi may have revered the mother and perhaps may have genuinely bought certain things as gifts for the mother perhaps in compliance with his religious faith which directs him to take care of his mother. However, going by the principle regulating resulting or constructive trusts, one cannot state that Hakimi has successfully hidden his wealth.
The properties bought for the mother as gifts can be identified perhaps based on the nature of the property and use. For instance, if Hakimi had bought 5 houses in the mother’s name and the mother lives in one of the five which is located in Morocco while the other 4 houses are occupied by somebody else with Hakimi living in one. It can easily be presumed that the only house which is a gift to the mother is that which she lives in. Others can be constructively considered to be held by her in trust for Hakimi since he advanced the money. Equity can find an intent therein that Hakimi’s intention all along was to deprive Hiba the benefit of the law which accords her certain percent of Hakimi’s wealth.
Accordingly, Hiba can raise the issue that Hakimi’s mother as a BARE TRUSTEE is holding the property in trust for Hakimi. That is, while the legal interest in the properties are with the mother, Hakimi still holds the beneficial interest since he provided the money and can earn proceeds of sale and can by that means be made to payout his obligations from the properties that can be earmarked as his through the constructive or resulting trust.
PRECAUTIONS FOR HAKIMI:
It is said that even the Devil knoweth not the mind of man. Accordingly, we cannot say for certain the reason why Hakimi accorded all his assets in the mother’s name: whether it was to avoid tax or to evade paying alimony to Hiba or simply out of love and regard for the mother. Whatever it is, it is deal to mention that Hakimi himself may have to bear certain things in mind as footballers’ career life is short and quite uncertain to an extent. It could be that Hakimi would need to fall back on all the properties he has purchased in his mother’s name and since there is nothing more certain than death and taxes, it is instructive to note that the demise of Hakimi’s mother would create some complexities for Hakimi in relation to the properties forming part of the mother’s estate.
One of the consideration that is vital to put into perspective is that, while we wish for Hakimi’s mother to live long, it is instructive to note that should Hakimi’s mother predecease him, it would be best for her to have the assets for which Hakimi advanced money to be bequeathed to him through her will or a deed of gift as the beneficial owner. If this is not done, the properties would then form part of the mother’s estate to be distributed under Islamic rule of inheritance and all Hakimi’s siblings and other specified kith and kin of the mother, would compete for a share as enumerated in the Qur’an.
Another means by which Hakimi could find some solace as having bought properties in the name of his mother is to have himself named as the person who holds an irrevocable power of attorney over the properties. That way, he could exert the powers accorded in the Power of Attorney in relation to the properties.
CONCLUSION:
The regulations for the payment of alimony obviously differs from one country to another. However, it is noteworthy that the law on marriage is interrelated with other laws like the law of Trust, law of succession and general law of contract. It is therefore ideal for person seeking to enter into marital engagement to seek legal advice in relation to how these variety of laws will play out especially when things fall out of place and as Lemar Obikwu puts it, when love turns to hate. For instance using the Hakimi and Hiba scenario, the complication could have been avoided by simply executing a pre and post nuptial agreement. That way, Hakimi would not need to have properties in the mother’s name (if at all he bought them in her name to avoid paying alimony). And he would not need to worry about what happens should his mother pass away.
It is also very important for persons entering marriage relationship to understand the implications of divorce within the jurisdiction in which they reside for more often than not, the outcome is determined by the law of such jurisdiction.
Ajibola Bello is a Legal Practitioner and Deputy Managing Partner at Law Corridor, Abuja.
