A Woman Answering Her Maiden Name After Marriage Can Promote Girl Child Education And Is Not An Unreasonable Behaviour That Can Warrant Dissolution Of Marriage.

The general practice in Nigeria is that when a woman gets married she automatically assumes the surname of her spouse.

This is also widely practiced in many cultures around the world. The name of her spouse replaces her birth surname after marriage; in the case of the wife it is called the maiden name. This practice has denied a lot of girl child opportunity of acquiring standard education. In our clime so many families and parents live with believe that sending someone to the high institution is for the promotion of the family name.

It should be noted from the outset that since Britain colonized Nigeria, much of English practices and customs were left with the people of Nigeria even after the attainment of independence by the latter. This includes the form of marriage known and adopted today by Nigerians as “wedding”, otherwise formally known in legal parlance as, “marriage under the Act/statutory marriage”.

Customary marriage is entirely different from the statutory marriage. Customary marriage is governed and conducted based on the people’s custom while statutory marriage is conducted in accordance with the law. The Marriage Act and the Matrimonial Causes Act spelt out in clear terms on how a valid legal marriage can be conducted or dissolved.

The circumstances under which the court may make a decree of dissolution of marriage are spelt out under Section 15 of the Matrimonial Causes Act. Under Section 15 (1), the court may make a decree of dissolution on the ground that the marriage has broken down irretrievably. The question there to ask is, “what are the facts or circumstances that would be held to amount to an irretrievable breakdown of a marriage”? Section 15 (2), provides that the court may hold that a marriage has broken down irretrievably if, and only if, the petitioner satisfies the court of one or more of the following facts:

1. That the Respondent has wilfully and persistently refused to consummate the marriage
2. That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
3. That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
4. That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the Petition;
5. 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 and the Respondent does not object to a decree being granted.
6. 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.
7. That the other party to the marriage has, for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under this Act;
8. 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.

Another characteristic of this marriage under the Act/statutory marriage is right to consortium. This is right of a spouse to all the normal relationships with his or her mate. Reference will be made to this in latter part of this discussion.

The crux of this write up is the question whether the fact that a woman has decides to retain her maiden name after marriage and the husband finds it unreasonable and threatens to dissolve the marriage. Can it be successfully linked to Section 15 (2) (c) of the Matrimonial Causes Act as an unreasonable behaviour?

Section 15(2)(C) OF the Matrimonial Causes Act provides that:

(2) A court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievable if, but only if, the petitioner satisfies the court of one or more of the following facts: (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.

The key words in the above is that “since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. The question at this point is what determines the petitioner’s “reasonability”

Section 16 of the Matrimonial Causes Act provides instances in which the petitioners action will be deemed reasonable. Section 16 of the Matrimonial Causes Act provides that:

(1) Without prejudice to the generality of section 15(2)(c) of this Act, the court hearing a petition for a decree to of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15(2)(c) of this Act if the petitioner satisfies the court that-

(a) Since the marriage, the respondent has committed rape, sodomy, or bestiality; or

 (b)Since the marriage, the respondent has, for a period of not less than two years-

• been a habitual drunkard, or

(ii)      habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has, for a part or parts of such a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated; or

(c)Since the marriage, the respondent has within a period not exceeding five years-

(i)  suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years, and

(ii)     Habitually left the petitioner without reasonable means of support; or

(d)Since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition; or

(e)Since the marriage and within a period of one year immediately preceding the date of the petition, the respondent has been convicted of-

(i)  Having attempted to murder or unlawfully to kill the petitioner, or

• Having committed an offence involving the intentional infliction of grievous harm or grievous hurt on the petitioner or the intent to inflict grievous harm or grievous hurt on the petitioner;

(f) Or the respondent has habitually and wilfully failed, throughout the period of two years immediately preceding the date of the petition, to pay maintenance for the petitioner-

(i) ordered to be paid under an order of, or an order registered in, a court in the Federation, or

(ii) Agreed to be paid under an agreement between the parties to the marriage providing for their separation; or

(g) The respondent-

(i) Is, at the date of the petition, of unsound mind and unlikely to recover, and

(ii)  Since the marriage and within the period of six years immediately preceding the date of the petition has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution.

 (2) Where a petition is based on the fact mentioned in section 15(2)(h) of this Act-

(a) proof that, for a period of seven years immediately preceding the date of the petition, the other party to the marriage was continually absent from the petitioner and that the petitioner has no reason to believe that the other party was alive at any time within that period is sufficient to establish the fact in question, unless it is shown that the other party to the marriage was alive at a time within that period; and

(b)  A decree made pursuant to the petition shall be in the form of a decree of dissolution of marriage by reason of presumption of death.

It has been held that matters enumerated in Sec 16(1) are of extremely grave nature, so that the behaviour alleged to be unreasonable and such that the petitioner cannot be expected to live with must be of equal gravity to those enumerated under Sec 16. This was the opinion of the court in the case of Oye v Oye (1974) E.C.S.N.LR, 49 where the husband- petitioner alleged unreasonable behaviour on the part of the wife- respondent and his finding it intolerable to live with her. Dismissing this argument, the trial judge held that the respondent’s refusal to change her maiden name and the unproved allegations of embarrassing and humiliating conduct of the respondent were not such grave conduct as would amount to unreasonable behaviour under Sec 15(2)(c).

Having considered the provisions of Section 16 of the Matrimonial Causes Act, the two pertinent questions to ask are;

1. Does the instances provided under the above provision include a woman retaining her maiden name after marriage?
2. Is Section 16 of the Matrimonial Cause Act exhaustive of what a petitioner can prove to show that he/she cannot reasonably be expected to live with the respondent? Or can a petitioner prove any other thing outside the list, having regards to the opening sentence of the section; “Without prejudice to the generality of section 15(2)(c) of this Act”?

Having carefully considered the provisions above, to answer the first question I can succinctly say that a woman retaining her maiden name after her marriage is not among the listed behaviours which could be deemed unreasonable by Section 16 of the Matrimonial Causes Act and answering the second question, Section 16 Matrimonial Causes Act is not exhaustive on what a petitioner can prove to show that he/she cannot reasonably be expected to live with the respondent however it serves as a guide and streamlines what an intolerable behaviour can be.

It has been held that matters enumerated in Sec 16 (1) of the Matrimonial Causes Act are of extremely grave nature, so that the behaviour alleged to be unreasonable and such that the petitioner cannot be expected to live with must be of equal gravity to those enumerated under the Sec 16. This was the opinion of the court in the case of Oye v Oye where the husband Petitioner alleged unreasonable behaviour on the part of the wife- respondent and his finding it intolerable to live with her. Dismissing this argument, the trial judge held that the respondent’s refusal to change her maiden name and the unproved allegations of embarrassing and humiliating conduct of the respondent were not such grave conduct as would amount to unreasonable behaviour under Sec15(2)(c).

Behaviours under Section 15 (2) (c) is an issue of logic and reasoning that is not exhaustive. That a woman has decided to answer her maiden name after marriage cannot successfully come under the provisions of Section 15 (2) (c) as behaviour that is unreasonable to bring petition for dissolution of marriage by the husband, the ground does not fall within the list of unreasonable behaviour enshrined in Section 16 of the Matrimonial Causes Act and as such cannot be deemed as unreasonable. A woman has a right to retain her maiden name after marriage. Right to a name whether to change or retain is one of the rights of consortium. It is an inalienable right either party to the marriage must enjoy and loss of consortium is an actionable injury for which monetary damages may be awarded. It offends the legal logic that a husband would find the exercise of the woman’s right guaranteed by law in the marriage unreasonable.

Unreasonable behaviours are characters which a basic man on the street cannot be expected to put up with for example bestiality, rape etc. Albeit it is the general tradition and custom in our society for a woman to change her maiden name to that of her spouse after marriage, where a woman under a marriage refuses to conform to the status quo, it cannot be a reasonable ground to dissolve a marriage conducted under the Act. The standard of proof in any of the matters listed under Section 15 (2) of the Matrimonial Causes Act is that established to the reasonable satisfaction of the Court. The test of the reasonability here is that of objectivity as stipulated in Section 82 of the Matrimonial Causes Act. It is the woman’s right of consortium to either change or retain her maiden name after her marriage and that cannot be said to be unreasonable under Section 15 (2) (c) of the Matrimonial Causes Act.

Where there is Express Agreement between the spouses which allows the wife to retain her maiden’s name upon marriage, such agreement binds both parties and none shall be heard to complain because the latin maxim volenti non fit injuria will apply. That is to say that where the parties must have agreed that the wife answers her name and this agreement was done without duress on both parties; the agreement shall be an estoppel on any party who brings action before the court for the dissolution of the marriage on the ground that it is unreasonable and intolerable to live with the wife. Write on also the latin maxim of “pacta sunt servanda”

The Status of a woman can warrant her to decide answering her maiden name, even after marriage. In other words, where a woman has made name with her maiden name to the extent that she is being known with that name anywhere she is found. For instance, if she is a commissioner or Chief Judge as the case may be. The law allows her to go ahead with such name and the husband shall not see it as an unreasonable behaviour to bring it under Sec 15(2)(c) MCA.

The Right to Dignity of Human Person is provided for in Sec 34(1) of the 1999 Constitution; This section is all encompassing when it states that no person shall be subjected to torture or to inhuman or degrading treatment. It is inhuman for the husband to compel his wife to bear his name because she is married to him. The essence of marriage is for Companionship and not popularity of the man. Also, it is, to the woman, a degrading treatment if she is compelled to answer her husband’s name and tortured because of it. This sec protects every citizen of the country both male and female. If the husband actually sees his wife as his companion, he won’t be bothered or perturbed if she chooses to answer her name especially for professional reason or any other genuine reason.

Patriarchy and Discrimination (Violence against Women); the patriarchy imbedded in our system and the general practice has made men see it as custom that women must answer their name once married to them. This is not the situation outside the country, the choice to answer the last name of the husband is left entirely to the woman to or not to. It is discriminatory  nature of our system that makes men see themselves as dominant while women are recessive or weaker and should obey or submit. Our Constitution has through its provision for right against discrimination ensured equality for every person irrespective of their gender. Some International Treaties and Laws which have become ratified in Nigeria like the African Charter, Violence Against Women Act also contain provisions against discriminatory acts which tend to limit the choice of a woman.

Hohfeld’s analysis; The jurisprudential value of a woman retaining or answering her maiden’s name, even after marriage can be illustrated and seen in Hohfeld’s analysis. Where there is a right owned by one party, the other party has no right. In other words, where there is right, the other party has a duty. Applying this analysis to husband and wife, where the wife has a right to answer her name or has no legal obligation to change her name and answers her husband’s name, the husband has no right to disentitle her from answering her own name. He is duty bound to recognize, respect and protect such right. That is to say that, he cannot bring an action against the wife because it will be an encroachment on her right. Right according to Hohfeld is the enforceable claim to performance either through action or forbearance by another. Therefore, this right enjoyed by the wife must be enforceable against any other person. To the wife, it is an entitlement while to the husband it is forbearance.

Frivolities & Trivialities; Also, since the court does not concern himself with frivolities and trivialities, the court will not listen to the party (husband) who comes before it alleging that it is unreasonable and intolerable on his part allowing the wife to retain her name. The court sees such as frivolities and will not be an umpire to such.

Under the civil law, a woman does not lose her ante nuptial name through marriage especially where she has made name with that her maiden name. Her legal name does not vary with a change in her marital status. A wife may be known by her husband’s name socially, but under the civil law she does not acquire his name as her legal name. In other words, she is not compelled to adopt her husband’s surname, and an increasing number of women in recent years have chosen to retain their birth names after marriage.

Customarily, on marriage a wife assumes her husband’s name. it is to be noted that custom is not necessarily a logical basis for any law since a custom maybe arbitrary and discriminatory. Mere longevity of an arbitrary or discriminatory practice should not serve as justification in itself for its continuation. Any custom that is repugnant to natural justice, equity and good conscience should be quashed, expunged and invalid as was statutorily backed up in Sec 1(3) of the 1999 Constitution. Also, where there is conflict of law between the statutory law and customary law, the former shall prevail.

Change of Name; it is a trite law that a wife may not take her husband’s name on their marriage for professional or other reasons. Ordinarily, change of name is one of the elements of consortium. By custom, on marriage, a wife assumes her husband’s surname. Consortium is said to be those rights and duties accruing to a husband and wife. In other words, they are the marital alliance between a husband and wife and their respective right to each other’s support, cooperation, aid, companionship, affection, financial support and sexual relations. Although the change of name by a married woman is effected by custom, there is no legal obligation to change it. Invariably, the married woman can retain her name after marriage and will not be liable for such. This, she is entitled to, for professional or any other reasons. That is, where it is for professional reasons, she wishes to retain her maiden’s name, the law allows this and will not be liable for such. This, the husband will not see it as unreasonable or bringing it under Sec 15(2)(c) of the Matrimonial Causes Act.

In Conclusion, Women retaining her maiden name after marriage can be a tool for encouraging the girl child education. In our clime, many uneducated parents refuse sending their girl child to school on the basis that once she gets married she’ll change her name. If women are allowed to retain or attach their maiden name after marriage it will give such parents encouragement to educate the girl child and take away that fear that she will get married and throw her maiden name away.  There are women who keep their last names as that is what they grew up with, got all their degrees and career recognition under, so changing names would be damaging as far as career-networking and building a marketable brand identity.

Changing of name are not indices of fulfilment of marriage, people just do it as a general practice which has become acceptable; the practice has no backing in Law. There is no Law which provides that woman must change her maiden name, neither is it unreasonable for one to refuse to change hers.

By Chukwunonso E Onukwube, ceolivini@gmail.com Legal Practioner at Springfield Solicitors Abuja,

Anthonet Oliora-Egwuatu and Vivian Chinaza Osuji

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