Jactitation of marriage and related matters

To be honest, I am not sure what kind of comments I was expecting, if any at all. My aim, as usual, was to share legal information. Sometimes people mistake their moral beliefs for the law and so it was fun to read some of the comments and the very strong positions against the position of the law. The message I posted read, ‘Till divorce do us part; but I’ll keep the name, thank you.’ For the most part, the comments from men centred around morality. They felt it was immoral for a woman to keep her married name after the dissolution of the marriage. The starting point of the issue in this case would be the breakdown of the marriage and the divorce. When celebrities in Hollywood announce the end of their marriages, it is often reported that one party has filed for a divorce, citing irreconcilable differences. An action for divorce is commenced by a petition from the petitioner (the person who wants the divorce) to the respondent (the person responding to the petition for divorce). For us in Nigeria, section 15(1) of the Matrimonial Causes Act gives us our omnibus ground, which is that the marriage has broken down irretrievably. Section 15 of the Matrimonial Causes Act provides as follows: (1) A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably. (2) The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts- (a) that the respondent has wilfully and persistently refused to consummate 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 two 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 three 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. (3) For the purpose of subsection (2) (e) and (f) of this section, the parties to a marriage shall be treated as living apart unless they are living with each other in the same household. If you read the above closely you will see that one of the facts that a person must show the court to satisfy it that the marriage has broken down irretrievably is that the respondent to the petition has refused to consummate the marriage. The Act takes the consummation of marriage and conjugal rights in a marriage very seriously. While you may laugh when you read reports from the magistrates’ court where a petitioner informs the court that they are seeking a dissolution of the marriage because the respondent is starving them of sex, the law does not laugh about such matters. Apart from an order for the dissolution of marriage, there are other reliefs that a court can grant when a marriage is in trouble. They are: declaration of nullity of a void or voidable marriage; judicial separation; restitution of conjugal rights; and jactitation of marriage. The general rule is that any person has a right to assume a name of their choice as long as the change is not done with the intention of defrauding others. This is why a person must make a public announcement (usually through a newspaper advertisement) when they change their name. People take on different names for different reasons. This is the jump-off point and it will land you on the message in my social media post. Because a person can assume whatever name they choose, upon changing their name after entering into a marriage, they can keep the name even after the marriage ends. A person can take an action in court to stop their ex-wife from bearing his name but he will only be successful if the ex-wife has used the name to defraud others on the basis that she is still married to the person whose surname she bears. Unless there is some element of fraud such as where the ex-wife tries to collect rents from the tenants of an ex-husband on the pretext that the marriage is still subsisting; or the ex-husband has held out through his words or actions that the marriage subsists, in which case he cannot turn around and claim otherwise, the action will fail. Men do not have to go through the inconvenience of changing their name upon entering a marriage so it is easy to understand why the first thing on their mind is immorality rather than the practical consequences of a name change. When a woman has been known with a name for decades and has established her personal and professional identity with that name; and probably even acquired property in that name, imagine the consequences of having to change all her legal documents to reflect another name change and re-establish the new name with business associates. Imagine Ariana Huffington going back to her maiden name of Ariana Stasinopoulou after her divorce. We would not have the Huffpost today. Or imagine Tina Turner, who got divorced just as she was making a solo breakthrough and had entered the music world as Tina Turner, going back to Anna Mae Bullock. It is famously reported that Tina Turner in her divorce proceedings told the court that the only thing she wanted from the divorce was her name, ‘Tina Turner.’ Maybe we should adopt Spanish heritage where the woman keeps her maiden name even after marriage and the children bear their father’s name.]]>