Matrimonial Causes In Nigeria: Managing Emerging Legal Disputes In The Post Covid-19 Era

By Isimeme Andrew

Marriage is a universally recognized sacred institution between two people. Marriage is not a mere contract but one that creates status. The legislation on marriage in Nigeria recognises two forms of marriages; marriages under the Act and marriages under customary or Islamic laws[1].

Marriage, under the Act[2] which is also known as statutory marriage, envisages an institution between one man and one woman. Islamic and customary laws, however, established the institution of marriage in a polygamous nature, where a man can marry more than one wife. Furthermore, there is actually no uniform system of customary law prevalent in Nigeria as it differs from one ethnic locality to another.

As sacred as the institution is, it is beginning to experience a decline in sustenance all over the world. For instance, researchers estimate that 41% of all first marriages in the United States end in divorce[3]. In 2006, according to the National Bureau of Statistics, the divorce rate in Nigeria shows that, before 2018, an average of 0.2% of men and 0.3% of women decide to end their marriages, however, between 2018 and early 2020, there has been a surge in divorce cases[4]. At least 30 cases of divorce are reported at the FCT sexual and Gender Based violence Response team on a daily basis[5]. A total of over 1000 divorce cases were reportedly filed before various courts in the FCT[6], in a report published in 2018, a total of 3000 divorce cases were recorded in Lagos State[7].

The upsurge in divorce cases amongst Nigerian couples caught the attention of the National Council of Women Society (NCWS). The NCWS consequently took steps to address issues pertaining to marriages with the aim of preserving the sanctity of marriage.[8]

One of the issues that may become a basis for matrimonial causes in the post covid-19 era is that of domestic violence in marriages[9]. The world Health Organization stated that the risk of intimate partner violence is likely to increase during the covid-19 era as lockdown measures are put in place and people are encouraged to stay at home[10]. Sadly, Nigeria has also witnessed an increase in domestic and sexual violence, especially in regions like Lagos, which has risen by 276% and has led to swift intervention by the Nigeria Police Force and Non-Governmental Organizations[11].

These recent development may put marriages in a position where they may have to explore certain alternatives provided by law in order to provide solutions to unbearable realities.

NATURE OF MATRIMONIAL CAUSES AND RELIEFS

Matrimonial reliefs are not an entirely negative concept, in many instances, they have been instrumental in resolving issues in dysfunctional or unproductive marriages.

Ordinarily, we do not desire situations where marriages will have to irretrievably break down post Covid-19, however, if it becomes the unfortunate reality, it is cardinal to identify the possible matrimonial reliefs that can be obtained under the Act[12] and under Customary and Islamic Law.

Under the MCA a Person domiciled in Nigeria can bring an action in a High court in respect of any of the following;

1. Dissolution of marriage
2. Nullity of marriage either on ground that the marriage is void or voidable.
3. Judicial separation
4. Restitution of conjugal rights
5. Jactitation of marriage.

Dissolution of marriage and Judicial separation are the most common and prevalent forms of matrimonial reliefs and as such we will be narrowing our focus on these complex reliefs.

DISSOLUTION OF MARRIAGE UNDER THE MATRIMONIAL CAUSES ACT (MCA)

By virtue of Section 15 (1) of the MCA, a party to a marriage can present a petition for the dissolution of the marriage if and only if the marriage has ‘broken down irretrievably’. Thus, this is the only ground under which a marriage can be dissolved, however, there are certain situations where a marriage will be said to have ‘broken down irretrievably’ and they are outlined in section 15 (2) of the MCA to include the following:

• That the respondent has wilfully and persistently refused to consummate the marriage.
• That since the marriage the respondent has behaved in a manner that the petitioner cannot be expected to live with him.
• That the respondent has deserted the petitioner for a continuous period of at least 1 year immediately preceding the presentation of the petition.
• That the parties have lived apart for a continuous period of 2 years and that the respondent does not object to the decree been granted.
• That the parties of the marriage; have lived apart for a continuous period of at least 3 years immediately preceding the presentation of the petition.
• That the other party to the marriage has for a period of not less than 1 year failed to comply with the decree of restitution of conjugal rights made under the Act.
• That the other party have been absent from the petitioner for such a time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.

It is however noteworthy that a petition for dissolution of marriage cannot be presented within 2 years of the marriage, except by the express permission of the Court[13]. Ordinarily, courts do not grant such permission unless it is clear that refusal to grant same would impose exceptional hardship or depravity on the applicant. There are actually 4 instances where the leave of court can be dispensed with[14];

1. The respondent has wilfully and persistently refused to consummate the marriage;
2. That the respondent has committed adultery and the petitioner finds it intolerable to live with;
3. That the respondent committed rape and sodomy or bestiality; or
4. The institution of proceedings for a decree is by way of cross proceedings.

The rationale behind this rule is to deter people from rushing in and out of marriages.

It is noteworthy that even when a marriage has been proved, to the satisfaction of the court, to have broken down irretrievably, the petitioner may be denied entitlement to the decree were it is discovered that the petitioner has either condoned the respondent who has committed a matrimonial misconduct or connived with him/her to commit the misconduct or colluded with the respondent to procure the initiation or persecution of a suit for divorce with intent to cause a perversion of justice.[15]

DISSOLUTION OF MARRIAGE UNDER CUSTOMARY AND ISLAMIC LAW

Marriage under customary law may be dissolved by a mutual agreement between parties or by the order of a competent customary law court. The families involved may reach an agreement on the repayment of the bride price, the marriage terminates upon doing so.[16]

Under Islam, Sharia law provides for 3 modes by which marriages can be dissolved they are;

1. Unilateral repudiation of the wife by the husband;
2. Divorce by mutual consent; or
3. By judicial decree.

In Kano, under the Marriage Customary Practices law[17], the Matrimonial Arbitration Court was established to arbitrate between marriage couples on issues relating to maintenance of spouse, divorce, custody and maintenance of children, etc.

Section 30 (1) of the Births, Deaths, Etc. (Compulsory Registration) Act, Cap B9, LFN, 2004, requires all customary divorces to be registered by the registrar of divorces within 60 days of such dissolution.

JUDICIAL SEPARATION UNDER THE MATRIMONIAL CAUSES ACT

Unlike a decree of dissolution of marriage, a decree of judicial separation relieves the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation. A valid marriage still exists between the couple regardless of the absence of cohabitation. The decree does not affect the marriage or the status, rights and obligations of the parties to the marriage, while the decree of judicial separation is in force either party may sue the other in contract or tort[18].

Note that the 2 years rule and its exceptions also apply to an application for judicial separation[19].

A decree of judicial separation does not bar either of the spouses from subsequently petitioning for divorce on the same or substantially the same facts on which the judicial separation was ordered. The court will treat the separation as sufficient proof of the facts constituting the ground on which that decree was made. The husband is also obligated to cater for the wife and children while the decree subsists.

CUSTODY AND MAINTENANCE OF CHILDREN UPON DISSOLUTION OF MARRIAGE

Children of a marriage refers to any child adopted by the husband and wife or either of them with the consent of the other, or a child of the husband and wife born before the marriage whether legitimated by the marriage or not or any child of either the husband or wife.[20]

1. Maintenance[21]

The High court is vested with full discretion to make orders for maintenance pending the disposal of proceedings having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances. The object of maintenance order is to ensure that parties to the marriage are financially taken care of both during and after the marriage and to safeguard the welfare and well-being of the children of the marriage.

Upon the annulment of a marriage either party can bring an application for maintenance. The mere fact that a decree was granted against a party in the proceedings to which the application for maintenance is related does not disqualify that party from being entitled to the grant for a maintenance order.

Maintenance of a spouse of a statutory marriage

Section 70(2), MCA provides that only a party to a marriage can bring an application for financial support the writer however has identified some salient features in this section;

1. Only a party to a marriage can bring an application for financial support; Section 69 MCA describes ‘marriage’ to include marriages that are void, however, the definition does not include marriages according to the Islamic or customary laws.
2. Single mothers are exempted from bringing an application for maintenance. Although this position may be justified on the ground that the law must not encourage illicit or immoral relationships, it is our opinion that to protect the best interest and welfare of the children of such relationships, single mothers should be permitted to institute actions for financial support for herself and her children bearing in mind that the child in question is a product of both the Man and the woman and the woman should not be made to carry the burden alone.
3. Unlike the old common law rule, Husbands and wife are on equal footing with respect to obtaining maintenance order.

Maintenance of children of the Marriage

Section 70 (4) MCA provides that a maintenance order cannot be granted for the benefit of a child who has attained the age of 21 unless the court is of the opinion that there are special circumstances that justify the making of such order for the benefit of that child. The Children and Young Person Law makes it obligatory for a father, step mother and mother of a child to make contributions for the welfare of the child.[22]

Maintenance order may be granted pending the disposal of a suit or at the conclusion of same. The criteria for the award of both types of maintenance are the same.

2. Custody of the children

The Child Rights Act regulates custody of children in Nigeria although not all States have domesticated the Act. Custody of children is still predominantly regulated by the MCA and customary law. Custody issues may be decided during the hearing of a matrimonial cause or it could be a separate Proceedings. Under the MCA the interest of a child is of paramount consideration. The Supreme Court in William V William[23] outlined the principles that govern custody;

• The welfare of the minor is paramount
• Both parents have equal rights and authority
• The conduct of the parties will also be considered
• The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery makes it desirable
• The wishes of an unimpeachable parent stand first.
• The court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct.
• There is no settled rule that a child of tender years should remain in the custody of the mother.
• All the circumstances must be considered.

Custody under Islamic law

In determining issues of custody, courts may take into consideration the parent’s religion, place of permanent residence, income and the mother’s subsequent marital status. Priority is generally given to the father, custody of girls under the age of 9 and boys under the age of 7 may be given to the mother and subsequently transferred to the father. Where she remarries, a mother may lose her right to custody.

SETTLEMENT OF PROPERTY UPON DISSOLUTION OF MARRIAGE

The court may require the parties or either of them to make for the benefit of all or any of the parties to, and the children of the marriage such a settlement of property to which the parties are, or either of them is entitled as the court considers just as equitable in the circumstances of the case[24].  Children who have attained the age of 21 years cannot benefit from an order of settlement unless that the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child.

The Married Women Property Act[25] gives married women the right to own and acquire or dispose of property acquired before marriage. Married Women also enjoy equal rights to the family asset acquired during the marriage and to be involved in their disposal during or after the marriage or upon the death of her husband especially where it can be proved that she contributed to acquiring such property.

Under customary law both the man and woman can acquire properties before the marriage but upon the dissolution of the marriage, unfortunately, even in situations where the woman contributes to the marriage she cannot compel her husband to share the property with her.

EXPLORING ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN RESOLVING MATRIMONIAL DISPUTES

Divorce petitions are ordinarily resolved through litigation. One can hardly get a Decree of judicial separation or an order for maintenance without resorting to litigation.  Over the years, it has been evident that the path of litigation is characterized with several shortcomings. One major short coming is delay in proceedings, divorce matters receive no special status and are usually handled amidst other general causes in the Courts, this means that divorce matters suffer from the unnecessary delay in proceedings that has characterized the justice system in Nigeria[26].

Another notable shortcoming is the messy and complicated nature of Divorce proceedings. Most divorce cases have done irreversible damage to the relationship of the parties as well as their children due to the extent parties resort to in order to prove that the marriage has broken down irretrievably, parties has gone as far as denying the legitimacy of children in order to escape maintenance, parties have berated their reputation, humiliated each other, exposed confidential information about themselves, amongst other horrid actions in order to establish their cases before the Court. This has left parties bitter and resentful towards each other, it is usually worse in marriages where there are children involved as such resentment inevitably spills down to the children.

In Jadesimi v Okotie-Eboh & 2 Ors[27] the learned judge stated that it is far better to resolve matrimonial matters out of court considering the delicate and sensitive nature of matrimonial disputes.

We have identified various alternative modes of resolving matrimonial causes without resorting to litigation;

1. Arbitration and Mediation

This is less adversarial and more casual than traditional court settings, parties may adopt either arbitration or mediation which tends to facilitate a voluntary settlement.

Lawyers can act as “Divorce mediation lawyers” to help client achieve mediation success, either by successfully restoring the marriage or successfully achieving a mutual resolve to dissolve the marriage.

An example is when the couple are advised to capitalize on the provision of the law that permits couples that have lived apart for at least 2 years and are not contesting the divorce to obtain an order of court for dissolution[28].

2. Negotiation and Consent Judgement

In other to avoid the messy and complicated nature of divorce proceedings, parties may resort to negotiation. Instances like these involve both parties coming together to negotiate an out of court settlement. Both parties may reach a mutual separation agreement, referred to as ‘Terms of settlement’ duly executed by them where they come to an agreement regarding the division of property, custody of children and financial issues thereby escaping the incidence of the adversarial nature of litigation. Such agreement will then be adopted by a competent Court as a Consent Judgement.

3. Undefended Divorce: there is no room for default judgment in matrimonial proceedings in Nigeria. It’s although a practice that has gained acceptance in the US and countries like India, China and a few other civil law countries. That a respondent did not file his responses is not enough in Nigeria to warrant a default judgment. Like land matters, all facts or matters must be proved whether or not the respondent is present. Thus, there are defended or undefended suits in matrimonial proceedings. In a defended suit, the parties join issues; answer or cross-petition and answer; and reply. A defended suit is set down for trial in Form 32 Matrimonial Causes Rule (MCR). An undefended suit is where parties have not joined issues because the respondent did not file an answer. It is set down for hearing. The petitioner will have to prove to the court that he has a substantial claim even in the absence of the respondent. His success rests in the strength of his case not in the absence of the respondent’s, like any other civil suit, this is a strategic manner by which parties can escape the incidence of adversarial system. Here the respondent can choose to disappear and refuse to respond to the divorce petition filed by the other party. The court then allows a petitioner prove his case without the need for the estranged party to be present. The case of Aderemi Adedamola Ajidahun v. Mrs Dophine Oteri Ajidahun[29] the court in applying order Vii rule 1 i (a) – (d) of the Matrimonial Causes Rule gave judgement in favour of the petitioner upon the failure of the respondent to file an answer in response to the petition.
4. Development and application of scientifically tested relationship programs by married couples; Causes of Divorce cases in Nigeria ranges from lack of trust, lack of communication, third party interference, infidelity, lack of sexual intimacy, lack of preparation, domestic violence and sexual abuse, high expectation, finances etc. Rather than resort directly to Divorce which is unfortunately becoming the new normal, couples can be more deliberate about their marriages. While altering the course of marriage is not an easy task, psychological research shows that researched based marital education programs are effective in helping couples stay together and making unhappy marriages more satisfying[30].

CONCLUSION

We have identified the major reliefs established by law available to couples that desire to take steps to address deep rooted marital issues. We have also identified the available legal framework and its shortcomings. Although the Matrimonial Causes Act recognises amicable settlement of marital disputes, it only focuses on parties making an attempt at reconciliation. With the rise in matrimonial disputes across the nation, alternative dispute resolution may be a better medium of determining matrimonial causes.

EDITORIAL TEAM

1. Anthony Madukwe

(Senior Partner)

anthony.madukwe@nakudulawpartners.com

2. Emmanuel Omole

(Senior Associate)emmanuel.omole@nakudulawpartners.com

3. Isimeme Andrew

(Associate)Isimeme.andrew@nakudulawpartners.com

OUR OFFICES

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2. NO. 13D, ISA DUTSE STREET, OFF UMARU BABURA ROAD, BOMPAI GRA, KANO, KANO STATE.

www.nakudulawpartners.com

DISCLAIMER: This article is carefully drafted with the sole intention of providing general information on the subject matter. It does not in any way create a client/attorney relationship between readers and our Firm. We are always readily available to provide top-notch legal services.

[1]Section  34, 46 & 47 of the Marriage Act, Cap M6, LFN, 2004; Jadesimi v Okotie-Eboh & 2 Ors SC/188/ 1992.

[2] The Marriage Act, Cap M6, LFN, 2004

[3]https://www.wf-lawyers.com/divorce-statistics-and-facts/

[4] Ibid.

[5] Ibid

[6]https://www.google.com/amp/s/www.sunnewsonline.com/worries-as-courts-get-more-divorce-cases/amp/

[7]https://blueprint.ng/4000-divorces-in-2-months-which-way-family-values/

[8]http://www.google.com/amp/s/www.sunnewsonline.cpm/ncws-decries-increasing-rate-of-divorce-in-Nigeria.

[9]http://www.google.com/amp/s/amp.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestice-violence

[10]https://www.google.com/amp/mail-today/story/domestice-violenec-spikes-in-lockdown-govt-told-to-step-in-1671460-2020-04-27

[11]http://saharareportsers.com/2020/04/20/covid-19-lockdown-domesticsexual-violence-cases-rise-lagos-government-warns-perpetrators , https://nigeriainfo.fm/post/lockdown-domestic-violence-cases-surge-in-lagos

[12] Matrimonial Causes Act, Cap M7, LFN, 2004.

[13] Section 30(1) of the Matrimonial Causes Act,  CAP M7, LFN, 2004.

[14] Section 30(2) supra.

[15] Sections 26 & 27 supra.

[16] Okoriko V Otobo (1962) WNLR 48

[17].Section 9 (1), Marriage (Customary Practices Control) Law, Cap. 91, Laws of Kano State, 1991.

[18] Section 40, Matrimonial Causes Act, Cap M7, LFN, 2004.

[19] The rule states that a petition for dissolution of marriage cannot be presented within 2 years of the marriage, except by the express permission of the Court – Section 30 (1) supra.

[20] Section 69 supra.

[21] Section 70 supra.

[22] Section 24 of the Child Rights Act, 2003.

[23] (1987) All NLR 253 at pp 260 – 261.

[24] Section 72, Matrimonial Causes Act, Cap M7, LFN, 2004

[25] Married Women Property Act of 1882 (a statute of General Application within Nigeria).

[26]https://www.thisdaylive.com/index.php/2020/02/13/cjn-laments-delay-in-justice-delivery-in-nigeria/

[27] SC/188/ 1992.

[28] Section 15(2)(e), Matrimonial Causes Act, Cap M7, LFN, 2004.

[29] 3PLR/2000/9 CA.

[30]https://www.apa.org/research/action/marital