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In recent years we have
seen an increasing number of marriage breakdowns. In Europe and America, this
upward trend has increased periodically over the last 2 decades; with an
average of 57% of all first marriages ending in divorce.
seen an increasing number of marriage breakdowns. In Europe and America, this
upward trend has increased periodically over the last 2 decades; with an
average of 57% of all first marriages ending in divorce.
However, in Nigeria this
is not the case. Due to a significant difference in cultural and social values,
divorce is still somewhat of a new phenomenon. But it is definitely on the
rise; some people argue that this may be due to globalisation watering down
ancient traditions, with others arguing that it is due to a new breed of
Nigerian entering into the marriage contract, resulting in parties not having a
clear understanding as to what is expected of them.
is not the case. Due to a significant difference in cultural and social values,
divorce is still somewhat of a new phenomenon. But it is definitely on the
rise; some people argue that this may be due to globalisation watering down
ancient traditions, with others arguing that it is due to a new breed of
Nigerian entering into the marriage contract, resulting in parties not having a
clear understanding as to what is expected of them.
I must empathize that this
article focuses on marriage under the Matrimonial Causes Act (the “Act”) and is
not intended to trivialize divorce but merely shed light on aspects of ones
rights or obligations should the situation ever arise.
article focuses on marriage under the Matrimonial Causes Act (the “Act”) and is
not intended to trivialize divorce but merely shed light on aspects of ones
rights or obligations should the situation ever arise.
Legal Requirements for
a Divorce Application
a Divorce Application
A party seeking a divorce
would first need to apply to the court for a decree for the dissolution of
their marriage. When making the application the party must satisfy the court
that certain conditions have been met, these include:
would first need to apply to the court for a decree for the dissolution of
their marriage. When making the application the party must satisfy the court
that certain conditions have been met, these include:
• That either of the parties has willfully and persistently refused to
consummate the marriage;
• That either of the parties committed adultery;
• That the parties have been living apart for a period of two years from the
date of the filing of the application; or
• That either of the parties has failed to comply with the restitution of
conjugal rights for at least a year.
Generally divorce in this jurisdiction is frowned upon; thus we often find
Nigerian courts not wanting to be seen as encouraging divorce. Judges often
make orders mandating parties to explore various forms of reconciliation and
dialogue, effectively delaying the grant of the application. The resultant
effect of this is that, it takes several years, from the initial date of making
the application, till the final grant of the decree absolute. I have seen
instances where this process has taken over 8 years.
There was a matter I once
worked on where we had a couple who married very young and had simply grown
apart very quickly. They did not detest each other, nor did the marriage bear
children. Thus when the time came they simply made an informed decision that
“this” was not something either of them wished to proceed with. No love was
lost, they still shared mutual friends and were cordial to each other’s family
members. On one particular day during proceedings, after quite some time spent
separated, they saw each other and were exchanging pleasantries; all I could
hear was “Bawo ni Mummy ati Daddy? Bawo ni …”, in shock the lawyer representing
the woman instructed her to immediately formulate an angry demeanour and sit at
the extreme end of the court room. I was later informed that the particular
judge in the matter had a tendency of ordering irrational reconciliation long
after the marriage should have been dead and buried.
worked on where we had a couple who married very young and had simply grown
apart very quickly. They did not detest each other, nor did the marriage bear
children. Thus when the time came they simply made an informed decision that
“this” was not something either of them wished to proceed with. No love was
lost, they still shared mutual friends and were cordial to each other’s family
members. On one particular day during proceedings, after quite some time spent
separated, they saw each other and were exchanging pleasantries; all I could
hear was “Bawo ni Mummy ati Daddy? Bawo ni …”, in shock the lawyer representing
the woman instructed her to immediately formulate an angry demeanour and sit at
the extreme end of the court room. I was later informed that the particular
judge in the matter had a tendency of ordering irrational reconciliation long
after the marriage should have been dead and buried.
The Idea of
‘Oyinbo’ Maintenance
‘Oyinbo’ Maintenance
Maintenance: Periodic
financial support received by a party claiming maintenance.
financial support received by a party claiming maintenance.
In other jurisdictions a
party making an application for maintenance has the right to receive
maintenance to a value which will be sufficient to maintain the marital
standard of living, as long as the other party is in a strong financial
position and is able to afford such an order. The main determining factor in
making such a claim is the ability to prove historical expenses and reasonable
needs.
party making an application for maintenance has the right to receive
maintenance to a value which will be sufficient to maintain the marital
standard of living, as long as the other party is in a strong financial
position and is able to afford such an order. The main determining factor in
making such a claim is the ability to prove historical expenses and reasonable
needs.
Maintenance laws in these
jurisdictions regard both parties as being equally responsible for the success
of the home, regardless of whose name in which assets are held. These courts
believe that if not for the combined effort of both parties, the union would
not have been as financially successful as it was; this contention is
heightened in instances where the union lasted several years, and both parties
had nothing at inception. In such an instance it is not unheard of for the
courts to split the combined wealth of the parties equally between the two
parties.
jurisdictions regard both parties as being equally responsible for the success
of the home, regardless of whose name in which assets are held. These courts
believe that if not for the combined effort of both parties, the union would
not have been as financially successful as it was; this contention is
heightened in instances where the union lasted several years, and both parties
had nothing at inception. In such an instance it is not unheard of for the
courts to split the combined wealth of the parties equally between the two
parties.
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In some instances where
one party is already significantly wealthy at the time of marriage, the party
making the application for maintenance may plead that the richer party had
“introduced them to a lifestyle which must be maintained”; again such party
would need to prove historical expenses and reasonable needs in support of such
an argument.
one party is already significantly wealthy at the time of marriage, the party
making the application for maintenance may plead that the richer party had
“introduced them to a lifestyle which must be maintained”; again such party
would need to prove historical expenses and reasonable needs in support of such
an argument.
In these jurisdictions
uncontested divorce proceedings tend to take between 6 weeks and 16 months.
uncontested divorce proceedings tend to take between 6 weeks and 16 months.
Maintenance – Naija Style
Under Nigerian law, an award for maintenance is at the discretion of the judge
presiding over the matter; the judge has the freedom of choice in determining
exactly what one might get and also how long proceedings might take; unfortunately
this factor is further empathized where the party is unable to hire an
experience lawyer (they say a good lawyer knows the law, but a great lawyer
knows the judge…).
Although, to a large
extent the court has the power to determine as it deems best, judges are
however guided by the following factors:-
• The age of the parties;
• The social standing of the parties and their lifestyles;
• The conduct of the parties during the marriage;
• The respective means and earning capacity of the parties; and
• The existence and the number of children.
extent the court has the power to determine as it deems best, judges are
however guided by the following factors:-
• The age of the parties;
• The social standing of the parties and their lifestyles;
• The conduct of the parties during the marriage;
• The respective means and earning capacity of the parties; and
• The existence and the number of children.
A number of legal
precedents have laid the foundation for the creation of the factors above.
However the extent to which the courts will grant the applicants requests and
the length of time for which such requests are granted are at the sole
discretion of the judge presiding over the matter. In the judges interpretation
of the Act all that is required is that the judge does what he/she deems as
being just and equitable based on the judges understanding of the circumstances
revolving around the breakdown of the marriage and the subsequent request for
maintenance.
precedents have laid the foundation for the creation of the factors above.
However the extent to which the courts will grant the applicants requests and
the length of time for which such requests are granted are at the sole
discretion of the judge presiding over the matter. In the judges interpretation
of the Act all that is required is that the judge does what he/she deems as
being just and equitable based on the judges understanding of the circumstances
revolving around the breakdown of the marriage and the subsequent request for
maintenance.
Maintenance orders tend to terminate in instances where the party granted such
an order successfully remarries, or possibly where the financial position of
either of the parties changes considerably from what it was at the time of
making the initial order.
Maintenance orders, with
regards to children, will usually remain valid until the child is 21 years old.
They are completely separate and distinct from the obligation owed to the other
party to the marriage.
regards to children, will usually remain valid until the child is 21 years old.
They are completely separate and distinct from the obligation owed to the other
party to the marriage.
Immovable Property
Aside from spousal support
and child maintenance, in adjudicating over the matter the judge may also make
awards in regards to immovable property. However, the precedent adopted in
other jurisdictions, whereby properties accumulated during the course of the
marriage are also shared equally, has faced unprecedented resistance in
Nigeria. Again, here, the courts are only guided by the rule of what is just
and equitable.
and child maintenance, in adjudicating over the matter the judge may also make
awards in regards to immovable property. However, the precedent adopted in
other jurisdictions, whereby properties accumulated during the course of the
marriage are also shared equally, has faced unprecedented resistance in
Nigeria. Again, here, the courts are only guided by the rule of what is just
and equitable.
Na Who Scatter the House?
Due to the freedom given
to the courts in such matters, in Nigeria a culture of blame has been
developed. To a large extent judges have autonomy when making their decisions,
and naturally tend to penalise the party who they believe is to “blame” for the
breakdown of the marriage, thus castigating same for not honouring the sanctity
of the union.
to the courts in such matters, in Nigeria a culture of blame has been
developed. To a large extent judges have autonomy when making their decisions,
and naturally tend to penalise the party who they believe is to “blame” for the
breakdown of the marriage, thus castigating same for not honouring the sanctity
of the union.
The reality of this is
that a “wise” party contemplating divorce will accumulate the necessary
evidence to effectively prove their case before proceeding to make the initial
application for the dissolution of their marriage. This will not only have a
high chance of influencing the final award for maintenance and spousal support,
if any, it may also positively affect the time it might take to secure the
judgement of the court (i.e text messages, photographic evidence, voice
recordings, video evidence etc.).
that a “wise” party contemplating divorce will accumulate the necessary
evidence to effectively prove their case before proceeding to make the initial
application for the dissolution of their marriage. This will not only have a
high chance of influencing the final award for maintenance and spousal support,
if any, it may also positively affect the time it might take to secure the
judgement of the court (i.e text messages, photographic evidence, voice
recordings, video evidence etc.).
During the course of this
article I have made deliberate attempts not to infer that the party making the
claim for maintenance and spousal support is either male or female. The truth
is, although existing Nigerian precedents are founded on the presumption that
the woman is the party likely to be in the position to need spousal support and
require assistance from the man. In reality, just because it has historically
been the woman making such applications, this does not mean that a man is not
legally entitled to make an application for maintenance. If the right instances
were to present itself a man would have as valid a claim as any woman.
article I have made deliberate attempts not to infer that the party making the
claim for maintenance and spousal support is either male or female. The truth
is, although existing Nigerian precedents are founded on the presumption that
the woman is the party likely to be in the position to need spousal support and
require assistance from the man. In reality, just because it has historically
been the woman making such applications, this does not mean that a man is not
legally entitled to make an application for maintenance. If the right instances
were to present itself a man would have as valid a claim as any woman.
I must stress at this
point that where parties find themselves in a corner, and it seems that the
marriage is no longer a viable option, rather than rushing to seek advice from
legal experts, it may be more prudent to consult a marriage counselor first.
point that where parties find themselves in a corner, and it seems that the
marriage is no longer a viable option, rather than rushing to seek advice from
legal experts, it may be more prudent to consult a marriage counselor first.
Recently a man filed for divorce the day after a very lavish wedding. When
questioned by the presiding judge as to why the marriage had broken down, he
explained that on the night of the wedding, in an attempt to consummate the
union he had discovered that his bride had been wearing “butt pads” during the
entire courtship. He claimed he could no longer trust her and that she had
deceived him as to her real persona. I would like to believe a marriage
counselor would have offered other solutions, thus avoiding a complete
dissolution of the marriage.
Ed’s Note: This article was originally published here.