MATRIMONIAL DISINTEGRATION - ISSUES AND PROSPECTS

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

According to Lord Westbury in Shaw v Gould^[1]

Marriage is the foundation of the civil society and no part of the laws and institutions of a country can be of more vital importance to its subject than those which regulate the manner, and condition of forming, and if necessary, of dissolving the marriage contract.

The growth and development of the contemporary Nigerian society and the present social, political and economic hardships (particularly in an economic recession), being affected on per second dosage on most Nigerians have had negative effects on the life span and duration of marriages particularly customary law marriages. The resulting hardship and challenges present in many marriages today inadvertently push the edges of the closing envelope of survival of most marriages, causing greater number of cases of separations or outright divorce. Consequentially, issues that relate to the dissolution of marriage, and the ancillary reliefs of custody and care of the children (if any) of such broken marriages have once again been pushed to the fore of legal discourse and study. This is especially true of the dissolution regime of marriages contracted under customary law, details of which are not as stable and formal as statutory marriages. Nigeria, being a country of diversity in people and culture, presents a deluge of customs, usages and traditions controlling marriage, divorce and custody relative for each community. Within this diversity though, unity is evident. So that some rules of customary law of marriage can be enacted in the areas under consideration which are common to or similar in most of these communities.

According to Dr.Akinola Aguda,

There is no doubt that the rules governing customary marriage vary from place to place, if one may say so from time to time, like all other rules of customary law, anywhere, but one can hardly subscribe to the suggestion that in spite of that, we cannot find basic requirements of a valid customary marriage. To that extent, we may say that what we have is a customary ‘Law’ of marriage which varies from place to place according to the customs of the people^[2]

These various customary laws of marriage detail basic and obligatory rules controlling the making of valid customary marriages, dissolution and custody of children among others. The focus of this paper therefore, is to critically examine the law relating to customary law marriages from the perspective of dissolution, custody of children, maintenance and other issues relating thereto so as to evaluate conclusively the issues and prospects of matrimonial disintegration.

1.2 Statement of Research Problem

Incidence of separated broken marriages in world statistics has continued to increase sporadically. In both statutory and customary marriages, the issue cannot be taken for granted as it is fast constituting into one of the greatest maladies of the family and therefore the society though legal. However, it is beneficial to engage the procedure, grounds and reliefs of the divorce system provided for in customary and statutory laws with a view of determining their comparative conformity with international best practices and their status in human right laws. This, is the objective of this work.

The United States has the highest divorce rate in the world[3]. In 1980, the number of divorces per 1,000 population peaked at 5.2[4]. Since that year, the divorce rate has dropped, reaching 4.6 in 1994[5]. Individuals who get divorced usually explain their divorce on the basis of individual and relationship factors, but a variety of social factors contribute to divorce as well. Under the Matrimonial Causes Act, a person domiciled in Nigeria may institute proceedings in respect of the following reliefs:

1. Dissolution of marriage.

2. Nullity of marriage (void or voidable).

3. Judicial separation.

4. Restitution of conjugal rights.

5. Jactitation of marriage.

The parties to a marriage are proper parties to a petition for a matrimonial relief. But in certain cases, like adultery, a third party may be joined to the proceedings as a “CoRespondent.[6]” The Co-Respondent must be the one with whom the Respondent committed the adultery. The Court may award damages for adultery against the Co-Respondent[7]. The court shall however not award damages if the Petitioner has condoned the adultery; or where adultery is not a ground for a decree of dissolution of the marriage[8], or where the adultery has been committed more than 3 years before the date of the petition[9].

Divorce is a common incidence in both statutory and customary marriages. It presupposes a dissolution and/or termination of a hitherto validly celebrated marriage. However, its operation and applicability to the various legal systems; statutory and customary, differs greatly in details with regards to grounds, procedures and consequential reliefs possible. Hence to determine the grounds and recommend procedures as well as predict effects of marriage dissolution, it is relevant to first resolve the question of which form of marriage is under consideration. Yet the determination of which form of marriage is under consideration has assumed a fresh complexity in the contemporary legal regime where for instance almost every marriage celebrated superimposes customary marriage on the statutory marriage or vice versa. It is therefore, against this background that this study seeks to evaluate the issues and prospects od matrimonial disintegration in Nigeria.

1.3 Objectives of the Research

The objective of this research work is to find solutions to the problems raised by the statement of the research problems. Specifically, it is also the objective of this study to:

1. Identify the legal framework that directly and indirectly governs marriage, marital conflict, dissolution and disintegration.

2. Examine the problems, if any, to the matrimonial integration and disintegration.

3. To enhance access to information on the negative consequences of matrimonial disintegration on the family, the home and the society.

1.4 The Scope of the Research

In this work, an attempt is made to understudy the grounds, procedures and available consequential reliefs relating to each marriage form as arising from differential legal systems; statutory and customary law systems. This is done with a view to criticizing identifiable deficiencies in the light of human right provisions and international best practices; as well as recommending approaches considered compliant to human dignity, natural justice, equity and good conscience.

1.5 Research Methodology and Sources of Information

This research adopts doctrinal methodology i.e. content analysis. In other words, domestic statutes, case law, maxim, statutory and case reviews, jurisprudential considerations, hermeneutics and other relevant literature or data will be analyzed. Therefore, this study is largely a library- oriented research.

Also, this research uses both primary and secondary sources. The primary sources here include various Case Laws as well as the acts and sections regarding the issues of marriage, and matrimonial disintegration. The secondary source of data for this research includes the soft laws, published and unpublished work of scholars relevant to the research. These include books, journals, articles, seminar papers, newspapers and other periodicals.

1.6 Justification of the Research

This work is justified by the problems raised by the statement of the problem of this study. The work is also justified by its relevance to law students, lecturers and the general public. This research aims to raise awareness of the fact that damage to the marriage during times of conflict and disagreements affects the family long after the period of the conflict, and most often extends beyond the limits of the family to the society as a whole. Marriage is crucial for ensuring enduring peace and sustainable development in the family and the society respectively. There can be no durable peace if the home that sustains individuals is separated or destroyed.

Consequently, it is important to strengthen the legal framework that protects the family, marriage and peaceful coexistence. This research is an effort in that direction and therefore very relevant and timely.

1.7 Organizational Layout of the Research

This study is divided into five chapters. The first chapter is the general introduction showing among other things, the general introduction of the research and its scope. It also discusses the statement of research problems, significance of the research and the research methodology.

Chapter Two examines the nature and scope of marriages, marriage laws and dissolution as well as the classification and types of marriage. Chapter three identifies and analyses the grounds for matrimonial disintegration and marital dissolution.

Chapter four considers the problems and prospects of disintegration of matrimony, the enforcement mechanisms of the legal framework on marriage and matrimony among others. It also examines remedies for matrimonial disintegration. Chapter Five which is the final chapter of this study, shows the conclusion, major findings and recommendations of the study.