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THE EVOLUTION OF DIVORCE LAW AND PRACTICE IN NIGERIA

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By Abimbola A. Laoye-Balogun

Background

Marriage is a universal institution that 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 that governed the society where the parties lived or where they originated from.

Although the main hub of 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.

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.

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.

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 the her to her parents’ house, or deserting her by simply walking away from the marriage. Sometimes abandoning the wife with children whom she must cater to by herself whether she is capable financially or not or whether she is old enough to cater to 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 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 the difficult decision of enduring an unhappy or abusive marriage or face the shame and 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 Nigeria’s position today. The promulgation of the Matrimonial Causes Act in 1970 ushered in the coexistence 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”.

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 spelled out by the same act.

Divorce on the other hand has not found a 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 and 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 against being trapped in a mental and/or physical hell of an abusive marriage for Nigerian women. While the courts recognize 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 that human beings are not infallible for instance; marriages could go 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 because the marriage has broken down irretrievably. This tactic of making divorce proceedings cumbersome will discourage divorce in our society.

The principle of the irretrievable 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”.

The court in the case of Shokunbi 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”.

The irretrievable breakdown 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 sections 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.
  1. That the Respondent has deserted the Petitioner for a continuous period of at least 1(one) year immediately preceding the presentation of the petition.
  1. 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.
  1. 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 that allows a painless
  1. That the other party to the marriage has, for not less than one year failed to comply with a decree or restitution of conjugal rights made under the Matrimonial Causes Act.
  1. 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.
  1. 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

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.

In divorce proceedings, the courts take into consideration all issues affecting parties to the marriage such as children, whether biological or otherwise, and other issues that were 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).

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

  1. 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).

This is unlike customary law which has the general rule that any child born of the marriage belongs to the father, except suckling babies the mother may keep until the father requests for custody of the child.

Procedure

The High Court in any Nigerian state, except 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 orders 30 and 40 of the Matrimonial Causes Act, such leave may be obtained expertise 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).

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 Matrimonial Causes Act does 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:

  1. Definition of Marriage

The commission by its bill set out to modify the definition of marriage to cover both the monogamous and polygamous systems which are 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.

  1. 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 Nigerians 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.

See also Section 29 (4) (b). Sec 21 and Sec 22 of the Child’s Rights 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.

  1. Foreign Marriage

Again, the Bill provides for the validity of marriages celebrated outside Nigeria if such marriages conform to the lex loci celebrations.

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.

  1. Bigamy

The commission while taking note of the non-enforcement of the offense 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 offense 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’s 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

            Websites

  • 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.

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