Family Law. - Legalnaija

What to prove to get a divorce in Nigeria | Adedunmade Onibokun

by Legalnaija | Oct 20, 2017 | Uncategorized

Official statistics from
the National Bureau of Statistics suggest that divorce is exceedingly uncommon
in Nigeria with just 0.2% of men and 0.3% of women having legally untied the
knot and well under 1% of couples admit to being separated. But as a Legal practitioner,
I seek not to agree with this statistic especially as I witness many divorce
proceedings in family courts and the newspapers are regularly awash with
reports of petitions for dissolution for marriages.

Moreover, it has been
argued in several quarters that the above statistics do not put into
consideration the number of marriages conducted under traditional law and also Islamic
law.

Under Nigerian law, a statutory
marriage can only be dissolved by a court order and divorce is guided by the
Matrimonial Causes Act. It is also worthy to note that under Nigerian law, marriage
is between a man and a woman, as Nigerian law does not recognize same sex marriages
or unions. The law also further provides a 14 year jail term, for anyone who participates
in same – sex unions or relationships.

With regard to petitions
for dissolution of marriage, Section 15(1) of the Matrimonial Causes Act provides
that, a petition may be presented to the court by either party to the marriage upon
the ground that the marriage has broken down irretrievably.

Submitting a petition for
dissolution of marriage does not however automatically mean that the divorce
will be granted, as the petitioner must be able to prove sufficient grounds to
warrant the prayer being granted. If the petitioner fails to prove this, even
if the divorce is desired by both parties, the petition will be dismissed.

The grounds that a petitioner
must prove to show that the marriage has broken down irretrievably are stated
in Section 15(2) of the Matrimonial Causes Act, they include –

a. That the other partner (i.e.
respondent) has willfully and persistently refused to consummate the marriage,
meaning that the other spouse has refused to have sexual intercourse since the
celebration of the marriage.

b. That since the marriage the respondent
has committed adultery and the petitioner finds it intolerable to live with the
respondent.

c. That since the marriage the respondent
has behaved in such a way that the petitioner cannot reasonably be expected to
live with the respondent.

d. That the respondent has deserted the petitioner
for a continuous period of at least one year immediately preceding the
presentation of the petition;

e. That the parties to the marriage have
lived apart for a continuous period of at least 2 years immediately preceding the
presentation of the petition and the respondent does not object to a decree being
granted;

f. That the parties to the marriage have
lived apart for a continuous period of at least 3 years immediately preceding
the presentation of the petition;

g. That the other party to the marriage
has, for a period of not less than one year, failed to comply with a decree or
restitution of conjugal rights made under this act;

h. That the other party to the marriage
has been absent from the petitioner for such time and in such circumstances as
to provide reasonable grounds for presuming that he or she is dead.

The dissolution of
traditional or customary marriage is however not as stringent as that under the
marriage act. A customary law marriage can be dissolved without judicial
pronouncement or intervention.

For more information about
how to get a divorce, you can talk to a lawyer or send a mail to the
undersigned.

Adedunmade Onibokun

Principal
Partner

Adedunmade
Onibokun & Co.

www.adedunmadeonibokun.com

dunmadeo@yahoo.com

Divorced But Married: The Disturbing Trend Of Fake Divorces | Jamiu Akolade Esq

by Legalnaija | Oct 10, 2017 | Uncategorized

The breakdown of a marriage is undoubtedly
a painful and life-changing event. But what could be more painful than finding
out that you are still married even though you are supposed to have been
divorced years ago?

I was instructed recently by Mrs. A to
claim maintenance for the child of her marriage to Mr. A who she had been
‘divorced’ from over three years before. According to her, Mr. A has been
inconsistent with the maintenance payments. My first response was to ask for a
copy of the order of court dissolving the marriage to have an idea of the
arrangements made by the judge for the welfare of the child post-dissolution.
What I saw next shocked me to the marrow.

I saw a supposed order for ‘nullification’
of marriage which purportedly dissolved the marriage summarily without a trial
and nullified the marriage from the day of celebration. For added measure, the
marriage was supposedly dissolved on the ground of ‘incompatibility’ between
the parties to the marriage which by the way lasted only two months. I was
convinced that the order was suspicious and required further investigation. A
few visits to the High Court registry confirmed my worst fear: This was a fake
order. It was not granted by any court but by one of the growing army of fake
divorce mercenaries What I found is a criminal racket that permeates the
marriage and High Court registries orchestrated by State officials and urchins
preying on the victims some of whom are willing and others unsuspecting,
looking for quick fixes to their marital woes and others needing it for more
criminal purposes – for emigration and other unspeakable frauds. Suffice to say
that we are taking action against the participants in this criminal enterprise
in the case of Mrs. A.

This got me thinking: how many people are
going around believing they are divorced when they are actually still married.
Mrs. A completely believed she was divorced and was in a relationship which
could have led to marriage (she would inadvertently have committed bigamy and
her ‘new’ husband would have been committing adultery with a married woman)
before this bombshell. She would not believe me until I produced the letter
from the court registry disclaiming the order. I then realized that citizens
need more education about how the marriage dissolution process works and
decided to pen down a few pointers to how the process works.

1.
A
statutory marriage conducted at the marriage registry or in an authorized place
of religious worship for which a marriage certificate is issued can only be
dissolved by a judge after hearing the parties on the factors which led to the
breakdown of the marriage. If you are given a ‘divorce order’ without having to
appear in court, that my friend is a fake divorce.

2.
Proceedings
for dissolution of a marriage is not complete until arrangements are made for
the welfare of the children of the marriage if any and other financial
provisions such as maintenance for the party entitled to it, settlement of
property, e.t.c.

3.
The
court is mandated to attempt reconciliation of the parties. This will happen at
different stages of the process. Before your lawyer files the suit, he is
expected to file a certificate confirming that he has advised his client on the
possibilities of reconciliation. During the proceedings, there is a compulsory
conference (meeting) which parties must have to explore settlement. After the
trial, there is also a three – month window within which the parties may
reconcile before the dissolution becomes absolute. Certainly, dissolution of a
marriage is not a tea party.

4.
Dissolution
of a marriage is not conducted at the marriage registry or the court registry.
It is done before a High Court Judge in the case of a statutory marriage or
before the judges of a Customary Court for customary law marriages. In the case
of Mrs. A, she fell into the hands of a fraudulent person at the registry who
she called for advice and was told the marriage could be ‘nullified’ at the
registry since the marriage was still within a year of celebration!

5.
Many people fall into this trap of fake
divorces due to privacy concerns. They are more than willing to adopt any
measure that does not involve them appearing in court to ‘wash their dirty
linens in public’. While a court appearance may be unavoidable, it is important
to know the best approach to achieving a dissolution without the sordid details
of the marriage. Parties can exploit the no-fault option of seeking dissolution
on the ground of living apart for 2-3 years before presenting the petition for
dissolution if their case falls under this head. In this way, nobody needs to
prove the fault of the other party and the court would dissolve the marriage without
an inquiry into this.

If you suspect you may have fallen into
this trap of fake divorces, my advice to you is to visit the High Court
registry to verify the order you have been given. If you find out that you are
‘divorced but still married’ then you will need to go through the process
outlined above all over again. I share your pain.

Jamiu Akolade Esq

T: @akoladejay

E: akoladejamo@yahoo.com

Lagos Nigeria.

Source

When You Discover You’re Not the Father | Ivie Omoregie

by Legalnaija | Aug 14, 2017 | Uncategorized

A few months ago I watched a heart
wrenching video of an Igbo man who discovered his only son was not actually his
biological child. After 32 years of being a wonderful and loving father and
relocating the boy’s destiny to England, the boy’s mother calls them to drop
the bombshell. Recently, we have been seeing a lot of news about paternity
testing in Nigeria. There have been many funny memes about it, but anyone who
has actually faced this in reality will tell you that it is not a laughing
matter.

This just made me wonder; a lot of the time
when a woman gives birth in Nigeria she tends to be married, and the father of
the child is presumed to be the woman’s husband. In almost all instances where
a woman tells a man that he is the father of her child, she would be offended
if he asked for a paternity test. However, after talking to several friends about
the topic, one comment that was reoccurring was, “Ivie you cannot even begin
to understand how many men in Nigeria are raising children that are not
biologically theirs. Many of them continue with the marriage because of image,
but tend to start misbehaving uncontrollably”.

This article talks about paternity fraud
and the legal implications in Nigeria and abroad for same.

Paternity Fraud

Paternity fraud is where a woman leads a
man to believe he is the legitimate and biological father of a child. This may
be either by misidentification, where the woman is wrong in her own belief as
to who the child’s father is; or may be outright fraud, where the mother knows
categorically that the man is not the child’s biological father, but for
reasons best known to her, continually tells him “You Are The Father…”.

In 2015 a survey conducted by Durex
revealed that Nigerian women are amongst the most unfaithful in the world; the
DNA department of the Lagos University Teaching Hospital has estimated that
approximately 30% of Nigerian men are not the biological fathers of their
children. However, many others believe paternity fraud is even more prevalent
than this. Some argue that in most cases women know who the biological father
of their children are and that misidentifications are rare.

The Legal Implications – Abroad

In other jurisdictions, paternity fraud is
a very serious issue. As you can imagine, with the gravity of child maintenance
in these countries, such a mistake often turns out to be a very expensive
mistake. In this case, the authorities have the right to use the affidavit of
paternity or birth certificate, both signed by the father, as proof of
paternity in child maintenance cases.

The laws relating to child maintenance vary
from region to region; however, what resonates is that the best interests of
the child are of the utmost importance. Thus, where there have been confirmed
cases of paternity fraud, the courts have the onus of determining whether
payments should continue, or whether the father may cease continuation of
payments.

It has not been unheard of, for a man to be
mandated to continue child maintenance payments for a child who has been
revealed as being unrelated to the man where maintaining the status quo has
been deemed as being in the best interest of the child.

Implications Of Paternity Fraud

Depending on jurisdiction, women involved
in paternity fraud are often guilty of a criminal offence, however many courts
are unwilling to convict on grounds of paternity fraud. This is because, the
best interests of the child are of paramount concern.

Where the mother is able to prove that the
matter is a genuine misidentification, as opposed to outright fraud, then this
may successfully mitigate any possible liability she may have; or rather, the
presiding judges willingness to extend the full ambits of the law against her.

In most instances, the only recourse a man
would have is a monetary claim against the woman for all the monies exhausted
on that child, however the likelyhood of her having the capacity to repay
monies, expanded over the course of several years in one lump sum, are slim to
none. Where the child is a teenager, damages awarded in such an instance could
run into the millions.

The Legal Implications – Nigeria

Unfortunately there seems to be no case
history in a court of record for paternity fraud in Nigeria. As stated above,
it is something that is definitely happening in our society. Regrettably, due
to our culture of keeping things in house, in most instances parental/community
intervention and church counselling, are the primary means of conflict
resolution.

The most one might possibly hear is that,
Tunde and Yinka are no longer together, and that Tunde doesn’t even take care
or see his “daughters” again.

Some believe that another reason for sweeping
things under the carpet is that in most instances there is no court
intervention, where a man has a child through extra-marital affairs or out of
wedlock. Fathers simply know that they have an obligation to cater for their
children, and so tend do so. Thus why would there be court intervention in this
case?

Conclusion

Unfortunately in Nigeria we have not gotten
to the stage where any man has actually sued a woman for paternity fraud.
However, just like spousal support for men, any man who establishes that he has
been wrongly maintaining a child who is not his biological child, has a claim
against the mother of said child – in the form of monetary damages. How the
Nigerian courts might decide to handle the matter is an entirely different
matter.

Any man who believes that a child is not
his biological child should seek a DNA test immediately. I believe, for the
well-being of the child, it is something that really should be highlighted and
rectified as soon as possible. Every man has the right to be able to forge
solid relationships with their biological children and every child has the
right to know their biological fathers.

Many men sign a child’s birth certificate
without “doing the needful” and I believe this is where the problem lies.
Mandatory paternity tests at the time of birth will significantly solve the
issue of paternity fraud.

In Nigeria we are very far from such an
order being likely to be implemented. If all else fails, I would advise women
to simply pray that the child is a splitting image of the identified father,
thus avoiding unnecessary questioning.

Ivie Omoregie

Energy & Finance, Associate at Templars

This article was first published here

You can sue for a breach of promise to marry

by Legalnaija | Aug 4, 2017 | Uncategorized

The Nigerian culture takes marriage really serious;
many young adults consider settling down as quite important and enter
relationships with the intention of spending time with this partner. Such relationships
could include casual flings, having an exclusive dating relationship or even
had led to an engagement with a promise to marry. However, sometimes these
relationships don’t work out and parties stop dating or being friends all
together.

What if a heart break could entitle you to financial
damages, will you act on it? So you met a great guy that swept you off your
feet, you had envisioned life with your man and maybe he had even proposed to
you before your friends and family. You gave him your world and you had both
agreed to get married but at the end of the day he ditched you for someone
else. The hurt sometimes can only be best imagined. However, did you know that
you may be entitled to damages for a breach of contract to marry?

Nigerian law states that an agreement to
enter into a marriage should leave nobody in doubt as to the real intention of
the parties to enter into a marriage. A mere convivial or romantic relationship
without more is not enough for a court to found an agreement to marry. In
essence, there must have been a promise to marry. A promise to marry can be a
“betrothal”, an “engagement to be married” also termed “agreement to marry”. Such
agreement need not also be formal such as a written agreement as it may also be
oral.

For the purpose of proving a claim, two
elements are necessary to constitute a breach of agreement or promise of
marriage. First, the party jilted must prove to the satisfaction of the court
that there was in fact a promise of marriage under the Matrimonial Causes Act,
1990, or under Islamic Law or under Customary Law, on the part of the other
sex. Second, the party reneging has really, and as a matter of fact, failed or
refused to keep to the agreement of marriage.

In proving that there was a breach of
promise to marry, the claim must be corroborated by another witness or other
material evidence such as correspondences and communications, as the law specifically
states corroboration is required in actions of breach of promise of marriage. The
reliefs you can seek in court shall however be limited to damages as the court cannot
compel anyone to marry another. Extent of damages for such breach is however at
the discretion of the court.

Damages awarded by courts fall under the
following categories: general damages e.g. compensation for the loss of
consortium of the other party; injured feelings, wounded pride, etc ; special
damages affecting property e.g for money spent or financial loss sustained by
the plaintiff as a direct result of the defendant’s breach of the promise to
marry; recovery of the engagement ring and presents. An interesting thing to
note is that damages could also be claimed against a third party who induced
the breach.

It is important to note that not everyone
is bound by a breach of promise to marry. The other party may also have valid
reasons of defences for not carrying out the obligation. Such may include false
representation, or fraudulent concealment in material particulars, of the
pecuniary circumstances or previous life of the claimant. The bad character of
the claimant will also excuse the defendant from performance of the contract,
unless he or she was aware of the plaintiff’s character before making the
promise.

Physical or mental incapacity may give rise
to a right to terminate the engagement in limited circumstances. No disease or
infirmity short of absolute incapacity on the part of the defendant will avail
him or her, however, even if it is proved that the performance of marital
duties would endanger his or her life. The fact that the defendant honestly and
reasonably believed the plaintiff to be unfit to marry is no defence if the
plaintiff was in fact fit. Also, it is a defence to an action for breach of
promise that the plaintiff has released or discharged the defendant from
performance before any breach of the contract occurs. The release may be
express or implied.

What do you think, would you sue an ex for
a breach of promise to marry?

1. www.lawreform.ie.
(2017). THE LAW RELATING TO BREACH OF PROMISE OF MARRIAGE. Available:
http://www.lawreform.ie/_fileupload/consultation%20papers/wpBreachofPromise.htm.
Last accessed 4th August, 2017.

2. Ezeanah v. Atta
(2004) 7 NWLR (Pt. 873)468

3. Lambe v. Jolayemi
(2002) 13 NWLR (Pt. 784) Pg. 356 Paras. E – G

4. Orumor. (11th
October, 2016 ). The breach of promise to marry and its legal
consequences. Available:
https://guardian.ng/features/the-breach-of-promise-to-marry-and-its-legal-consequences/.
Last accessed 4th August, 2017 .

5. The Honourable (Mr)
Justice Adebayo Manuwa v. National Judicial Council & Ors (2011)
LPELR-5015(CA)

Adedunmade
Onibokun

dunmadeo@yahoo.com

Photo Credit – www.patch.com