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Background
Marriage is a universal institution
which has been in existence from time immemorial. It can be traced as far
back as the very creation of man and is considered to have spiritual, moral and
social significance in society. It is therefore revered as sacred and
thus heavily guarded by various religions, traditions, social norms
and laws alike .
which has been in existence from time immemorial. It can be traced as far
back as the very creation of man and is considered to have spiritual, moral and
social significance in society. It is therefore revered as sacred and
thus heavily guarded by various religions, traditions, social norms
and laws alike .
In Nigeria, the sanctity of marriage
cuts across all regions of the country regardless of culture and religion. The
major types of marriages that existed in the pre-colonial era were the
cultural/traditional marriage and the Islamic/Maliki marriage. The type of
marriage practice was determined by the prevalent traditions or religions which
governed the society where the parties live in or where they originated from.
cuts across all regions of the country regardless of culture and religion. The
major types of marriages that existed in the pre-colonial era were the
cultural/traditional marriage and the Islamic/Maliki marriage. The type of
marriage practice was determined by the prevalent traditions or religions which
governed the society where the parties live in or where they originated from.
Although the main hub of a marriage is
bliss and happiness similar to fairy tale endings, marriage is soon found
by most to be a far cry from that . In fact for most parties the
protection of marriage by culture and religion lands them in the eternal trap
of marriage. In some cultures such as in the northern parts of Nigeria
women have little or no say in their marital lives as a result of the age old
culture of forced/child marriages and betrothal from birth.
bliss and happiness similar to fairy tale endings, marriage is soon found
by most to be a far cry from that . In fact for most parties the
protection of marriage by culture and religion lands them in the eternal trap
of marriage. In some cultures such as in the northern parts of Nigeria
women have little or no say in their marital lives as a result of the age old
culture of forced/child marriages and betrothal from birth.
The concept of Marriage and divorce
affects Nigerian women more than it affects men due to the deep rooted culture
that all women should be married leaving women with little or no
choice as to what direction or dimension their lives should take. Hence
more women are trapped in a hellish or short life as a result of
being stuck in abusive marriages.
affects Nigerian women more than it affects men due to the deep rooted culture
that all women should be married leaving women with little or no
choice as to what direction or dimension their lives should take. Hence
more women are trapped in a hellish or short life as a result of
being stuck in abusive marriages.
Divorce or dissolution of marriage on
the other hand is considered to be an abomination because it is
perceived to whittle away the sanctity of marriage. The outright discouragement
of divorce by all societal forces creates unfair double standards,denial and
religious apathy; For example, the law against bigamy, a frequent occurrence
among men, including those professing Christianity, has never been invoked;
also the acceptance of concubines in the traditional Nigerian culture is
accepted by both men and women alike.
the other hand is considered to be an abomination because it is
perceived to whittle away the sanctity of marriage. The outright discouragement
of divorce by all societal forces creates unfair double standards,denial and
religious apathy; For example, the law against bigamy, a frequent occurrence
among men, including those professing Christianity, has never been invoked;
also the acceptance of concubines in the traditional Nigerian culture is
accepted by both men and women alike.
Various traditions and religions have
also been known to condone divorce by means as simple as a unilateral action of
returning the bride price to the parents of the bride; by simply professing
divorce by word of mouth three times(as is seen under Islamic
law), returning her to her parents’ house,or deserting
her by simply walking away from the marriage. Sometimes abandoning the wife
with children who she must cater for by herself whether she is capable
financially or not or whether she is old enough to cater for them or not (in
the case of child marriages).
also been known to condone divorce by means as simple as a unilateral action of
returning the bride price to the parents of the bride; by simply professing
divorce by word of mouth three times(as is seen under Islamic
law), returning her to her parents’ house,or deserting
her by simply walking away from the marriage. Sometimes abandoning the wife
with children who she must cater for by herself whether she is capable
financially or not or whether she is old enough to cater for them or not (in
the case of child marriages).
The same cannot be said of the marital
standards set for the Nigerian woman. Women in the Nigeria are generally
subject to the whims of their husbands, who may choose to throw them out and in
the streets without any form of support if he so desires and without any
consequences whatsoever. The decision by women in Nigeria to divorce is not undertaken
lightly as the consequences of divorce are more severe for women . Women
are caught between the ocean and the deep blue sea whereby they have to make a
difficult decision of enduring an unhappy or abusive marriage or face the shame
that stigmatization that awaits any woman who dares to have the
courage to divorce her husband and father of her children. Seeking divorce
increases discrimination in jobs, sexual harassment, societal
ridicule,financial difficulty,loss of custody of children and loss of property
rights.
standards set for the Nigerian woman. Women in the Nigeria are generally
subject to the whims of their husbands, who may choose to throw them out and in
the streets without any form of support if he so desires and without any
consequences whatsoever. The decision by women in Nigeria to divorce is not undertaken
lightly as the consequences of divorce are more severe for women . Women
are caught between the ocean and the deep blue sea whereby they have to make a
difficult decision of enduring an unhappy or abusive marriage or face the shame
that stigmatization that awaits any woman who dares to have the
courage to divorce her husband and father of her children. Seeking divorce
increases discrimination in jobs, sexual harassment, societal
ridicule,financial difficulty,loss of custody of children and loss of property
rights.
Common Law Marriages
The advent of colonialism brought about
common law marriages in Nigeria. In England there were several reforms which
are the bedrock of the Nigeria’s position today.The promulgation of the
matrimonial causes act in 1970 ushered in the co existence of common
law/statutory marriages, Islamic/Maliki marriages, and customary/traditional
marriages. Lord Penzance defined marriage in Hyde V. Hyde (1860) LR.I PD,
130 as:
common law marriages in Nigeria. In England there were several reforms which
are the bedrock of the Nigeria’s position today.The promulgation of the
matrimonial causes act in 1970 ushered in the co existence of common
law/statutory marriages, Islamic/Maliki marriages, and customary/traditional
marriages. Lord Penzance defined marriage in Hyde V. Hyde (1860) LR.I PD,
130 as:
“the voluntary union for life between
one man and one woman to the exclusion of all others”.
one man and one woman to the exclusion of all others”.
Under the law, marriage is generally
viewed in the law as a civil contract, an emotional bond and a financial
partnership. The procedure for the dissolution of marriage is likewise
expressly spelt out by the same act.
viewed in the law as a civil contract, an emotional bond and a financial
partnership. The procedure for the dissolution of marriage is likewise
expressly spelt out by the same act.
Divorce on the other hand has not found
statutory definition in any of the Acts. The rate of divorce in Nigeria has
increased gradually but slowly evidenced by the higher number of divorce
petitions brought before the courts. The astronomical increase in divorce in
Nigeria has been predicated on a plethora of reasons by various researchers
scholars such as the westernization of Nigerian citizens and the requisite
disappearance of “African values”. Others maintain the stand that the mothers
and wives of old would stay in a marriage even at the cost of their very lives.
statutory definition in any of the Acts. The rate of divorce in Nigeria has
increased gradually but slowly evidenced by the higher number of divorce
petitions brought before the courts. The astronomical increase in divorce in
Nigeria has been predicated on a plethora of reasons by various researchers
scholars such as the westernization of Nigerian citizens and the requisite
disappearance of “African values”. Others maintain the stand that the mothers
and wives of old would stay in a marriage even at the cost of their very lives.
Whether or not marriage remains a union
for life as stated by Lord Penzance remains an arguable topic. The Matrimonial
Causes Act created a window into the chance for a life of quality as against
being trapped in a mental and/or physical hell of an abusive marriage for
Nigerian women.While the courts recognise the fact that marriage is not an
institution that should entered into carelessly or recklessly, the courts have
also set a check and balance system by taking into consideration the fact the
human beings are not infallible for instance;marriages could go horribly
wrong to the extent of causing grievous harm mentally physically or both; and
the prevalence of child marriages in some regions of Nigeria may necessitate
the requisite dissolution or nullity of marriage.
for life as stated by Lord Penzance remains an arguable topic. The Matrimonial
Causes Act created a window into the chance for a life of quality as against
being trapped in a mental and/or physical hell of an abusive marriage for
Nigerian women.While the courts recognise the fact that marriage is not an
institution that should entered into carelessly or recklessly, the courts have
also set a check and balance system by taking into consideration the fact the
human beings are not infallible for instance;marriages could go horribly
wrong to the extent of causing grievous harm mentally physically or both; and
the prevalence of child marriages in some regions of Nigeria may necessitate
the requisite dissolution or nullity of marriage.
It is for this reason the courts have
set up a check and balance between the sanctity of marriage and the need to
live a life of quality and dignity. Thus the general rule as contained in the
Matrimonial Causes Act that divorce proceedings cannot be instituted within two
years of the solemnization of a marriage without the leave of the Court the
only exception to this rule is on the grounds that the marriage has broken down
irretrievably. This tactic of making divorce proceedings cumbersome will
discourage divorce in our society.
set up a check and balance between the sanctity of marriage and the need to
live a life of quality and dignity. Thus the general rule as contained in the
Matrimonial Causes Act that divorce proceedings cannot be instituted within two
years of the solemnization of a marriage without the leave of the Court the
only exception to this rule is on the grounds that the marriage has broken down
irretrievably. This tactic of making divorce proceedings cumbersome will
discourage divorce in our society.
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The principle of the irretrievable
breakdown of marriage as a ground for divorce is based on the idea that:
breakdown of marriage as a ground for divorce is based on the idea that:
“A good divorce law should be to
buttress, rather than undermine the stability of marriage, and when unavoidably
a marriage has broken down irretrievably, the empty legal shell of the marriage
should not only be buried, but buried “with decency and dignity and in a way
which will encourage harmonious relationships between the parties and their
children in the future”.
buttress, rather than undermine the stability of marriage, and when unavoidably
a marriage has broken down irretrievably, the empty legal shell of the marriage
should not only be buried, but buried “with decency and dignity and in a way
which will encourage harmonious relationships between the parties and their
children in the future”.
The court in the case of in Shokunbi
v. Shokunbi CCHCJ/7/76, p.1913 S.C also stated thus:
v. Shokunbi CCHCJ/7/76, p.1913 S.C also stated thus:
“It is the actual state of the marriage
that the court has to inquire into, as to know, whether or not, it is still
viable, rather than concern itself with the question of guilt or innocence or
either party which point is irrelevant”.
that the court has to inquire into, as to know, whether or not, it is still
viable, rather than concern itself with the question of guilt or innocence or
either party which point is irrelevant”.
The irretrievable break down of
marriage must however be proven by the petitioner who must satisfy the
court of the existence of one or more of the following elements as contained in
section 15 (2) and 16(1) of the act:
marriage must however be proven by the petitioner who must satisfy the
court of the existence of one or more of the following elements as contained in
section 15 (2) and 16(1) of the act:
Grounds For Dissolution Of Marriage:
1. That since the
marriage the Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent. In Johnson V. Johnson
1972 11 CCCHCJ 94, unreasonable refusal of sexual intercourse, nagging
habitual intemperate consumption of alcohol and inordinate sexual indulgences
of the Respondent with all sorts of women particularly housemaids were held to
be weighty and unreasonable acts to expect the Petitioner to put up with.
marriage the Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent. In Johnson V. Johnson
1972 11 CCCHCJ 94, unreasonable refusal of sexual intercourse, nagging
habitual intemperate consumption of alcohol and inordinate sexual indulgences
of the Respondent with all sorts of women particularly housemaids were held to
be weighty and unreasonable acts to expect the Petitioner to put up with.
2. That the Respondent
has deserted the Petitioner for a continuous period of at least 1(one) year
immediately preceding the presentation of the petition.
has deserted the Petitioner for a continuous period of at least 1(one) year
immediately preceding the presentation of the petition.
3. That the parties to
the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the Petition for divorce and the
Respondent does not object to a decree being granted.
the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the Petition for divorce and the
Respondent does not object to a decree being granted.
4. That the parties to
the marriage have lived apart for a continuous period of at least three years
immediately preceding the presentation of the Petition. Here, there is no
requirement that the other spouse should not object to the Petition being
granted. This provision is a “no fault” provision which allow a painless.
the marriage have lived apart for a continuous period of at least three years
immediately preceding the presentation of the Petition. Here, there is no
requirement that the other spouse should not object to the Petition being
granted. This provision is a “no fault” provision which allow a painless.
5. 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 the Matrimonial
Causes Act.
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 the Matrimonial
Causes Act.
6. That the other party
to the marriage has been absent from the Petitioner for such time and in such
circumstance as to provide reasonable grounds for presuming that he or she is
dead.
to the marriage has been absent from the Petitioner for such time and in such
circumstance as to provide reasonable grounds for presuming that he or she is
dead.
7. If she has a
reasonable fear that her life, body or health is in danger; physical violence
is not necessary and reasonable fear of danger is enough
reasonable fear that her life, body or health is in danger; physical violence
is not necessary and reasonable fear of danger is enough
See the cases of Otunga v. Otunga
(Unreported) WD/119/70 of 19th April 1971; Oki v. Oki (Unreported) WD/80/70
of 30th July 1971; Ekrebe v. Ekrebe (1999) 3NWLR (pt.596) 514 at 517.
(Unreported) WD/119/70 of 19th April 1971; Oki v. Oki (Unreported) WD/80/70
of 30th July 1971; Ekrebe v. Ekrebe (1999) 3NWLR (pt.596) 514 at 517.
In divorce
proceedings, the courts put into consideration all issues affecting
parties to the marriage such as children, whether biological or otherwise and
other issues which were totally disregarded under customary law.Such matters include
the following:
proceedings, the courts put into consideration all issues affecting
parties to the marriage such as children, whether biological or otherwise and
other issues which were totally disregarded under customary law.Such matters include
the following:
1. Property Dispositions
Under the act settlement of property is
based on what the court considers to be “just and equitable in the
circumstances of the case” for the benefit of any or all of the parties
involved, whether the spouses and/or children of the marriage (biological or
otherwise). (See part iv of the Matrimonial Causes Act 1970).
based on what the court considers to be “just and equitable in the
circumstances of the case” for the benefit of any or all of the parties
involved, whether the spouses and/or children of the marriage (biological or
otherwise). (See part iv of the Matrimonial Causes Act 1970).
This is unlike divorce under customary
law whereby the woman is expected to return every penny of the bride price to
the man, and also the woman is not entitled to any house even if it is jointly
owned with her husband
law whereby the woman is expected to return every penny of the bride price to
the man, and also the woman is not entitled to any house even if it is jointly
owned with her husband
2. Child Custody
The courts determine custody and
maintenance of children based on the “means, earning capacity and
conduct” and “all other relevant circumstances of both parties to the
marriage, such as the age of the children. (See section 70 of the
Matrimonial Causes Act 1970).
maintenance of children based on the “means, earning capacity and
conduct” and “all other relevant circumstances of both parties to the
marriage, such as the age of the children. (See section 70 of the
Matrimonial Causes Act 1970).
This is unlike customary law which has
the general rule that any child born of the marriage belongs to the father,
with the exception of suckling babies the mother may keep until the father
requests for custody of the child.
the general rule that any child born of the marriage belongs to the father,
with the exception of suckling babies the mother may keep until the father
requests for custody of the child.
PROCEDURE
The High Court in any Nigerian state,
with the exception of Imo, has jurisdiction over the dissolution of marriages
that have taken place under the act. Dissolution of marriage is commenced by a
petition issued against the party seeking the divorce (see order 3 rule 1 of
the Matrimonial Causes rules 1983).
with the exception of Imo, has jurisdiction over the dissolution of marriages
that have taken place under the act. Dissolution of marriage is commenced by a
petition issued against the party seeking the divorce (see order 3 rule 1 of
the Matrimonial Causes rules 1983).
Where leave is required to commence
divorce proceedings in court on the grounds stated in order 30 and 40 of the
matrimonial causes act, such leave may be obtained exparte by the party seeking
divorce (see order IV (1) matrimonial causes rule 1983)
divorce proceedings in court on the grounds stated in order 30 and 40 of the
matrimonial causes act, such leave may be obtained exparte by the party seeking
divorce (see order IV (1) matrimonial causes rule 1983)
Where the ground(s) for dissolution of
marriage is adultery, the alleged co adulterer must become a party to
those proceedings, (see order 3 rule 2(5) of the matrimonial causes rules
1983).
marriage is adultery, the alleged co adulterer must become a party to
those proceedings, (see order 3 rule 2(5) of the matrimonial causes rules
1983).
A judicial separation can be granted by
the court, allowing a couple to live apart but without dissolving the marriage.
Judicial separation does not allow parties to remarry; it is therefore not a
divorce in itself but serves as a precursor to actual divorce. The court may
then issue a decree nisi where satisfied that the marriage has indeed broken
down irretrievably. A decree absolute serves as the final order of divorce
wherein the court will issue an enrollment order evidencing the final
dissolution of marriage.
the court, allowing a couple to live apart but without dissolving the marriage.
Judicial separation does not allow parties to remarry; it is therefore not a
divorce in itself but serves as a precursor to actual divorce. The court may
then issue a decree nisi where satisfied that the marriage has indeed broken
down irretrievably. A decree absolute serves as the final order of divorce
wherein the court will issue an enrollment order evidencing the final
dissolution of marriage.
The matrimonial causes act does
not provide for the dissolution of a customary or Islamic marriage.
not provide for the dissolution of a customary or Islamic marriage.
Review of The Matrimonial Causes Act
One of the first assignments tackled by
the Nigerian Law Reform Commission which was set up in 1979 was a review of the
Marriage Act. The commission pointed out the inherent flaws in the existing
matrimonial causes act and commendably set out to remedy the said flaws as
follows:.
the Nigerian Law Reform Commission which was set up in 1979 was a review of the
Marriage Act. The commission pointed out the inherent flaws in the existing
matrimonial causes act and commendably set out to remedy the said flaws as
follows:.
1. Definition of
Marriage
Marriage
The commission by its bill set out to
modify the definition of marriage to cover both the monogamous and polygamous
systems which is practiced under the traditional/cultural system and the
Islamic/Maliki system.
modify the definition of marriage to cover both the monogamous and polygamous
systems which is practiced under the traditional/cultural system and the
Islamic/Maliki system.
This innovation of the commission is
the creation of a system for the registration of both customary and Islamic
marriages. Such registration is voluntary and falls within the responsibilities
of the Registrar of Marriages.
the creation of a system for the registration of both customary and Islamic
marriages. Such registration is voluntary and falls within the responsibilities
of the Registrar of Marriages.
2. Age
Age at the time of the marriage being
one of the greatest predictors of marriage is lacking in laws governing
marriage in this country. The commission recognized the absence of a legal
marriageable age for Nigerian and inserted in the proposed Bill a marriageable
age of 16(sixteen) years for boys and (14) fourteen years in respect to girls.
one of the greatest predictors of marriage is lacking in laws governing
marriage in this country. The commission recognized the absence of a legal
marriageable age for Nigerian and inserted in the proposed Bill a marriageable
age of 16(sixteen) years for boys and (14) fourteen years in respect to girls.
However the age of 14 and 16
respectively is pegging the age of marriage well below the constitutional age
of maturity as stipulated in section 29 of the 1999 Constitution of The Federal
Republic of Nigeria. This to my mind will not in any way encourage the
empowerment of women or improve the ordeal faced by Nigerian women. It will
rather encourage child marriages which have not benefited any economy in any
way.
respectively is pegging the age of marriage well below the constitutional age
of maturity as stipulated in section 29 of the 1999 Constitution of The Federal
Republic of Nigeria. This to my mind will not in any way encourage the
empowerment of women or improve the ordeal faced by Nigerian women. It will
rather encourage child marriages which have not benefited any economy in any
way.
See also Section 29 (4) (b). Sec 21 and
Sec 22 of the Child’s Right Act of Nigeria 2003 (CRA); Article 18 (3) of the
African Charter on Human and Peoples Rights; and Article 27 of the African
Charter on the Rights and Welfare of the Child.
Sec 22 of the Child’s Right Act of Nigeria 2003 (CRA); Article 18 (3) of the
African Charter on Human and Peoples Rights; and Article 27 of the African
Charter on the Rights and Welfare of the Child.
3. Foreign Marriage
Again, the Bill provides for the
validity of marriages celebrated outside Nigeria if such marriages conform to
the lex loci celebrationis.
validity of marriages celebrated outside Nigeria if such marriages conform to
the lex loci celebrationis.
The Bill also provides for the
celebration in Nigeria of marriage under foreign law. The requirements however
include the giving of notice to the Registrar of Marriages, entry of the notice
in the Marriage Notice Book and the need for the Registrar’s Certificate.
celebration in Nigeria of marriage under foreign law. The requirements however
include the giving of notice to the Registrar of Marriages, entry of the notice
in the Marriage Notice Book and the need for the Registrar’s Certificate.
4. Bigamy
The commission while taking note of the
non-enforcement of the offence of bigamy made the bid to strike a balance
between the abolition of bigamy as defined in the Marriage Act and the practice
of polygamy and polyandry under cultural/traditional and Islamic/maliki
marriages. the bill abolishes bigamy as an offence but still retains the
principle that an existing monogamous marriage constitutes a bar to a
subsequent valid marriage.
non-enforcement of the offence of bigamy made the bid to strike a balance
between the abolition of bigamy as defined in the Marriage Act and the practice
of polygamy and polyandry under cultural/traditional and Islamic/maliki
marriages. the bill abolishes bigamy as an offence but still retains the
principle that an existing monogamous marriage constitutes a bar to a
subsequent valid marriage.
Conclusion
In conclusion the reform of
inimical practices without the sensitization to the fact that women empowerment
should be a matter of high priority will amount to nothing more than political
expediency and rhetoric. The improvement of the quality of life of women by
recognizing and implementing better access to career patterns towards self
development and independence will be necessary for any laws regarding the
protection of women and the promotion of dignity and a higher quality of life
to be effective.
inimical practices without the sensitization to the fact that women empowerment
should be a matter of high priority will amount to nothing more than political
expediency and rhetoric. The improvement of the quality of life of women by
recognizing and implementing better access to career patterns towards self
development and independence will be necessary for any laws regarding the
protection of women and the promotion of dignity and a higher quality of life
to be effective.
REFERENCES
1. websites
- https://legalnaija.com/2013/02/fault-and-no-fault-principle-of-divorce.html
- http://www.academia.edu/4224509/Evolving_Marriage_Patterns
- http://www.dioceseoflagoswest.org/PastoralIssues/Teachings/MARRIAGE,%20DIVORCE%20AND%20SUCCESSION%20-%20THE%20LEGAL%20ASPECTS.htm
- http://www.ecoi.net/local_link/231461/339960_en.html
- http://www.justice.gov/eoir/vll/country/canada_coi/nigeria/NGA101047.E.pdf
- http://www.nationalnetworkonline.com/VOL7/vol9n31/column-faceofthelaw.html
- http://www.onlinenigeria.com/marriages-in-nigeria/Proposed-Reform-Of-Marriage-Act/
- http://www.onlinenigeria.com/marriages-in-nigeria/Proposed-Reform-Of-Marriage-Act/#ixzz3RL2Euru1
1. ARTICLES
- Bambo
Adesanya, San; Marriage, Divorce and Succession; the Legal Aspect. - Fr Titus Ikechukwu Nnabugwu ; Fault And
No-Fault Principle Of Divorce In Nigeria - Imam,
Ayesha. 25 October 2012. Correspondence with the Research Directorate - Makinde
Oludolapo Toyosi; Legal Framework Of Statutory Marriage Andevolving
Marriage Patterns - Restatement
of customary laws in Nigeria; 2013
3.
BOOKS
BOOKS
- Charles
mwalimu; public law; introduction to the Nigerian legal system; volume 1 - Barrister
Julie D.A. Oguara; The Monster Called Divorce: The Greatest Tragedy of
Modern-day Families
1. STATUTES
- 1999
Constitution of The Federal Republic of Nigeria - Child’s
Right Act of Nigeria 2003 (CRA); - Matrimonial
Causes Act 1973 - Matrimonial
causes rules 1983 - The
African Charter on Human and Peoples Rights; - The
African Charter on the Rights and Welfare of the Child all prohibit girl
child marriages.