UNIT 34 (FINAL) - INTESTATE SUCCESSION (CUSTOMARY LAW)

TOPIC OF THE DAY

- INTESTATE SUCCESSION AMONG THE YORUBAS

- INTESTATE SUCCESSION AMONG THE IBOS

- INTESTATE SUCCESSION IN THE NORTHERN NIGERIA

Intestate Succession Among the Yorubas

Yoruba customary law of intestate succession follows a patrilineal system, where the property is distributed among the male descendants. The main principle is that the deceased’s property should remain within the family lineage. Although the statutory law may supplement customary law, especially where there is a conflict or where the customary law is considered repugnant to natural justice, equity, and good conscience.

1.Distribution of Property: this is where property is divided among the deceased's children, with male children often receiving a larger share. Female children may also receive shares, though these are generally smaller. See the case of Akanmu v. Adeniran (2008) 1 NWLR (Pt. 1067) 240 where the court emphasized the equal distribution of the remaining estate among all children after the eldest son’s entitlement.

2.Primogeniture: This is where the eldest son, known as the "Diya," typically receives the largest share and may inherit the family house (the "Ile Ijogbe"). See the case of Lewis v. Bankole (1909) 1 NLR 81 where the court affirmed the principle of primogeniture in Yoruba customary law, where the eldest son inherits the family house.

Intestate Succession Among the Ibos

Ibo customary law of intestate succession is primarily patrilineal, similar to the Yoruba system. The statutory intervention in Ibo customary law of intestate succession is significant, particularly in protecting the rights of female descendants. See the case of Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283 where the court held that the Oli-ekpe custom, which excluded female children from inheritance, was discriminatory and repugnant to natural justice, equity, and good conscience However, the Ibo system has distinct features:

1.Okpala (Eldest Son): The eldest son, known as the "Okpala," plays a significant role in inheritance. He inherits the family compound and other significant assets.

2.Umunna (Extended Family): The extended family, or "Umunna," has a strong influence on the distribution of the deceased's property. See the case of Arase v. Arase (1981) 5 SC 33 where the court highlighted the importance of the extended family in Ibo inheritance, where the Umunna had a say in the distribution of the estate.

Intestate Succession in Northern Nigeria

In Northern Nigeria, the laws of intestate succession are primarily governed by Islamic law (Sharia) for Muslims and customary law for non-Muslims. However, Statutory laws may apply to supplement or override customary and Islamic laws where necessary, particularly to protect the rights of all heirs and ensure justice.

1.Islamic Law: Under Islamic law, the estate of the deceased is distributed according to fixed shares as prescribed in the Quran. The primary heirs include the spouse, children, and parents of the deceased. See the case of Tsofo Gubba v. Gubba (1947) 12 WACA 133 where the court illustrated the application of Islamic law in Northern Nigeria, where the estate was distributed according to the prescribed shares in the Quran.

2.Customary Law: For non-Muslims, customary law varies among different ethnic groups, but the principles often mirror the patrilineal system seen in other parts of Nigeria. See the case of Alhaji Ilori v. Tella (1969) NMLR 372 where the court demonstrated the role of customary law in the distribution of an estate among non-Muslims in Northern Nigeria.

UNIT 33 - INTESTATE SUCCESSION (ADMINISTRATION OF ESTATES)

TOPIC OF THE DAY

- THE MEANING OF INTESTACY

- STATUS BASED ADMINISTRATION OF ESTATES

Meaning of Intestacy

Intestacy occurs when a person dies without having made a valid will, or the will made does not dispose of all the deceased’s property. In such cases, the property of the deceased is distributed according to the rules of intestacy as laid down by the law. Intestacy can be either total or partial. Total intestacy happens when no will is made, while partial intestacy happens when a will exists but does not cover all the deceased's assets.

In Nigeria, the administration of estates in cases of intestacy is governed by various statutes and customary laws, depending on the jurisdiction and the type of marriage contracted by the deceased. See the Administration of Estates Law in states like Lagos and Ogun, where the Administration of Estates Law governs intestacy and sections 36 to 49 of the Administration of Estates Law (Lagos State) detail the distribution of the estate in cases of intestacy.

Also under the Customary Law in many Nigerian states, customary laws govern the distribution of estates in intestacy. These laws vary widely among different ethnic groups. For example, the Yoruba customary law of inheritance typically provides for the distribution of the estate among the deceased’s children, with male children often receiving larger shares. See the case of Lewis v. Bankole (1908) 1 NLR 81 where the court discusses the application of customary law in the distribution of an estate. It is a leading case in the understanding of customary intestacy rules and the case of Obusez v. Obusez (2001) 15 NWLR (Pt. 736) 712 where the court provides insight into the principles governing the distribution of an estate under Yoruba customary law.

However, under the Marriage Act the type of marriage contracted by the deceased affects the administration of their estate. For instance, marriages conducted under the Marriage Act are subject to statutory rules, while customary marriages may be subject to customary laws.

Status-Based Administration of Estates

Status-based administration of estates refers to the legal framework that determines how the estates of deceased persons are administered based on their status, particularly marital status, type of marriage, and adherence to customary laws. This framework ensures that the administration and distribution of estates are carried out according to established legal and cultural norms. the key aspects includes the following;

1.Marital Status and Type of Marriage- This is where the type of marriage contracted by the deceased significantly affects the administration of their estate. In Nigeria, marriages can be statutory (under the Marriage Act), customary, or Islamic.

a.Statutory Marriage: This is where the Administration of Estates Law typically applies and the surviving spouse and children are the primary beneficiaries.

b.Customary Marriage: this is where the customary laws of the deceased’s ethnic group would govern the distribution and these laws can vary significantly.

c.Islamic Marriage: This is where the distribution follows Islamic law (Sharia), which prescribes fixed shares for heirs.

UNIT 32 - TESTATE SUCCESSION

TOPIC OF THE DAY

- SOURCES OF WILLS LAW IN NIGERIA

- THE NATURE AND CHARACTER OF A WILL

- TYPES OF WILL

- CAPACITY FOR MAKING WILLS

- WHO CAN MAKE A WILL

- STATUTORY REQUIREMENTS OF A WILL

- CANCELLATION AND REVOCATION OF WILLS

- STATUTORY MODIFICATIONS TO WILLS MAKING

Sources of Wills Law in Nigeria

The law of wills in Nigeria is derived from various sources, which include:

1.Statutory Law: The principal statute governing wills in Nigeria is the Wills Act of 1837, which is applicable in most states. Some states have their own Wills Laws, such as the Wills Law of Lagos State 1958.

2.Customary Law: Customary law plays a significant role, especially in the context of intestacy and the distribution of property among indigenous communities. Customary laws vary significantly across different ethnic groups.

3.Case Law: Judicial decisions from Nigerian courts provide interpretations and applications of statutory provisions and principles of common law related to wills. See the case of Aoko v. Fagbemi (1961) and Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382.

4.Common Law and Equity: Nigerian wills law also draws from English common law and principles of equity, given Nigeria’s colonial history and the reception of English law.

The Nature and Character of a Will

A will is a legal document by which a person, known as the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, known as executors, to manage the estate until its final distribution.

Characteristics of a will

1.Ambulatory: this is where a will does not take effect until the death of the testator.

2.Revocable: this is where a will can be revoked or altered by the testator at any time before death.

3.Testamentary Intent: This is where the testator must have the intention that the document will serve as their will.

4.Formal Requirements: this provides that a will must comply with certain legal formalities to be valid.

Types of Wills

1.Formal Will: This is the most common type of will, executed according to statutory requirements, usually in writing, signed by the testator and witnessed by two or more witnesses.

2.Holographic Will: this is a will entirely handwritten and signed by the testator. Its validity varies by jurisdiction; it is recognized in some Nigerian states under customary law.

3.Nuncupative Will: this is an oral will, often made by a person in imminent peril of death. It is generally limited to personal property and is subject to strict requirements.

4.Joint and Mutual Wills: Joint wills are made by two or more persons in a single document, usually a couple, to dispose of their property while mutual wills are separate wills with reciprocal provisions.

5.Living Will: Although not a will in the traditional sense, it is a document in which a person specifies their wishes regarding medical treatment in situations where they are no longer able to express informed consent.

Capacity for Making Wills

For a will to be valid, the testator must have the legal capacity to make a will. This includes:

1.Age: This is where the testator must be of legal age, which is 18 years in Nigeria, as stipulated by the Wills Act of 1837.

2.Sound Mind: This is where the testator must have testamentary capacity, meaning they understand the nature of the act of making a will, the extent of their property, and the claims of those who might expect to benefit. See the case of Banks v. Goodfellow (1870) LR 5 QB 549.

Who Can Make a Will

1.Adults: this makes any adult of sound mind can make a will.

2.Military Personnel and Mariners: Special provisions exist for military personnel and mariners, allowing them to make privileged wills under less stringent requirements.

Statutory Requirements of a Will

The statutory requirements for a valid will under Nigerian law generally include:

1.Writing: This is where the will must be in writing.

2.Signature: This is where the will must be signed by the testator.

3.Witnesses: This is where the testator's signature must be witnessed by at least two individuals present at the same time. See the Wills Act of 1837 under section 9.

Cancellation and Revocation of Wills

Cancellation of wills refers to the act of revoking a will or part of a will by physically marking it, such as crossing out or tearing. A will can therefore be revoked by:

1.A Subsequent Will or Codicil: This is where the testator may execute a new will or a codicil that expressly revokes the previous will.

2.Destruction: This is where the testator can revoke the will by intentionally destroying it.

3.Marriage: In many jurisdictions, including Nigeria, a will is automatically revoked by the subsequent marriage of the testator, unless the will was made in contemplation of that marriage.

Statutory Modifications to Wills Making

Statutory modifications in Nigeria include provisions that address issues like the testator's capacity, formal requirements, and the protection of family members who might be inadequately provided for. For instance:

1.Wills Law of Lagos State 1958 which includes specific provisions for the protection of family members.

2.Administration of Estate Laws which address the distribution of estates and may override certain testamentary dispositions to ensure fair distribution among beneficiaries.

UNIT 31 - SETTLEMENT OF PROPERTY

TOPIC OF THE DAY

- MEANING AND AIM OF SETTLEMENT OF PROPERTY

- PARTIES TO SETTLEMENT OF PROPERTY

- NATURE OF PROPERTY TO BE SETTLED

- TYPES OF SETTLEMENT

- RULES OF SETTLEMENT OF PROPERTY

- ENFORCEMENT OF ORDERS

Settlement of Property

Settlement of property refers to the arrangement made to distribute property, typically upon the dissolution of a marriage or relationship. This arrangement ensures that the interests of both parties and any children involved are adequately protected while the primary aim of the settlement of property is to provide a fair division of assets accumulated during the marriage or relationship. It seeks to ensure that both parties can maintain a standard of living post-separation and that dependents are adequately cared for. See the Matrimonial Causes Act, Cap M7, LFN 2004 which governs the settlement of property upon divorce, including sections on maintenance and distribution of assets and The Child Rights Act, 2003 which emphasizes the welfare of children in custody and property settlements. See also the case of Mojekwu v Mojekwu (1997) 7 NWLR (Pt. 512) 283 where the court addressed the distribution of family property and highlighted the importance of equitable settlement and also in the case of Akinbuwa v Akinbuwa (1998) 7 NWLR (Pt. 558) 354 where the court dealt with the principles guiding the division of matrimonial property.

Parties to Settlement of Property

The parties involved in the settlement of property are:

1.Spouses or Partners: The primary parties involved in the settlement are the husband and wife or partners in a cohabiting relationship.

2.Legal Representatives: Lawyers representing each party may negotiate terms on behalf of their clients.

3.Court: The judiciary plays a crucial role in ensuring that the settlement is fair and legally binding.

4.Children: While not directly negotiating, the interests of children from the marriage or relationship are a critical consideration.

Nature of Property to be Settled

The property to be settled includes:

1.Real Property: This includes land and buildings owned by either or both parties.

2.Personal Property: this includes movable items such as vehicles, furniture, and personal effects.

3.Financial Assets: this includes bank accounts, investments, shares, and other financial instruments.

4.Business Interests: this includes shares in a business, partnerships, or any other business assets.

5.Intangible Assets: this includes intellectual property, royalties, and other non-physical assets.

Types of Settlement

1.Lump-Sum Settlement: this is where one party receives a lump sum payment instead of ongoing payments.

2.Periodic Payments: this is where regular payments are made over a specified period.

3.Transfer of Property: this is where ownership of property is transferred from one party to another.

4.Trust Arrangements: this includes properties held in trust for the benefit of one party or children.

Rules of Settlement of Property

1.Fairness: this is where settlements should be equitable, taking into account the contributions of both parties.

2.Needs and Resources: This is where the court considers the needs, income, and resources of each party.

3.Welfare of Children: The best interests of any children are paramount.

4.Conduct of Parties: This is where the behavior of the parties during the marriage can influence the settlement.

5.Duration of Marriage: This is where the length of the marriage can also impact the settlement terms.

Enforcement of Orders

1.Court Orders: this is where settlements formalized by court orders are legally binding and enforceable.

2.Contempt of Court: this is where non-compliance with a court order can result in contempt proceedings.

3.Attachment of Earnings: This is where the court can order that payments be deducted directly from the paying party’s earnings.

4.Sale of Assets: This is where the court can order the sale of assets to meet the settlement terms.

5.Receivership: this happens in extreme cases, where the court may appoint a receiver to manage and distribute assets.

UNIT 30 - ANCILLARY RELIEFS TO MATRIMONIAL SUITS (CUSTODY OF CHILDREN)

TOPIC OF THE DAY

- CHILDREN SUBJECT TO CUSTODY ORDERS

- THE DISCRETION OF THE COURT

- THE INTEREST OF CHILDREN

- OTHER CONSIDERATIONS IN THE AWARD OF CUSTODY

- THE ORDER FOR CUSTODY

- ENFORCEMENT OF CUSTODY ORDERS

Children Subject to Custody Orders

Custody orders in Nigeria pertain to the legal guardianship and care of children, typically arising in the context of divorce or separation. The primary legislation governing custody matters is the Matrimonial Causes Act (MCA) 1970 and the Child’s Rights Act (CRA) 2003. See section 71(1) of the MCA which provides the court with the authority to make orders regarding the custody, guardianship, and welfare of children when a marriage is dissolved or nullified and section 1 of the CRA which emphasizes that the best interest of the child shall be the primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities, or legislative bodies. See the case of Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 where the Nigerian Supreme Court emphasized that in deciding custody matters, the welfare of the child is paramount.

Discretion of the Court

The court exercises considerable discretion in custody matters. The guiding principle is the welfare of the child, which encompasses both material and emotional well-being. The court may consider various factors such as the age, sex, and health of the child, the emotional ties between the child and parents, the capacity of each parent to provide for the child’s needs, and any history of family violence or abuse. See section 71(2) of the MCA which grants the court the discretion to make custody orders as it deems fit, considering the child's welfare and the case of Nwosu v. Nwosu (2012) LPELR-7968(CA) where the Court of Appeal held that the court must exercise its discretion judiciously and judicially, with the child's welfare as the paramount consideration and also the case of Oyewole v. Oyewole (1987) 2 NWLR (Pt. 56) 239 where the Supreme Court reiterated that the discretion of the court in custody matters must be guided by the welfare and best interests of the child.

Interest of Children

The interest of children in custody matters is the cornerstone of judicial consideration. The court evaluates various aspects to determine what arrangement best serves the child's physical, emotional, and educational needs. See section 14(1) of the CRA which specifically addresses the child's right to survival and development, emphasizing the importance of these factors in custody decisions and the case of Alabi v. Alabi (2007) LPELR-8202(CA) where the Court of Appeal stressed that the child's best interest should be the sole guiding principle in awarding custody and also the case of Okafor v. Okafor (2006) LPELR-7618(CA) where the court held that in evaluating the child's best interest, factors such as stability, continuity of schooling, and family environment are crucial.

Other Considerations in the Award of Custody

In addition to the child’s best interest, courts may consider other factors such as the parents' character, behavior, and the existing relationship between the child and each parent. The court may also take into account the child's wishes, particularly if the child is of sufficient age and maturity to express a reasoned preference. See section 19(1) of the CRA which mandates that a child capable of forming their own views has the right to express those views freely in all matters affecting them, with the views being given due weight in accordance with the child's age and maturity and the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 where the court considered the character and behavior of the parents, and the impact of these factors on the child's welfare, in making its custody decision and also the case of Ajiboye v. Ajiboye (2010) LPELR-3723(CA) where the Court of Appeal acknowledged the significance of the child's wishes, provided the child is of a reasonable age and maturity.

The Order for Custody

Custody orders specify the terms and conditions under which custody is granted. These orders may include arrangements for visitation, the provision of financial support, and other aspects essential to the child's welfare. The court strives to ensure that the custody order serves the child's best interests and provides stability and security. See section 71(3) of the MCA which allows the court to make orders for periodic payments for the maintenance of a child and the case of Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372 where the Supreme Court upheld a detailed custody order that included provisions for visitation and maintenance and also the case of Eze v. Eze (2010) LPELR-4516(CA) where the Court of Appeal reinforced the need for custody orders to be comprehensive and tailored to the specific needs of the child.

Enforcement of Custody Orders

Enforcement of custody orders is crucial to ensure compliance and protect the child's welfare. Courts in Nigeria have mechanisms to enforce these orders, including contempt proceedings against a parent who fails to comply. The welfare of the child remains the central concern in enforcement actions. See section 15 of the CRA which provides for the enforcement of orders related to the welfare of children, including custody orders and the case of Mohammed v. Mohammed (2008) LPELR-4494(CA) where the court held that failure to comply with custody orders could result in contempt proceedings and also in the case of Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt. 559) 661 where the Supreme Court emphasized the importance of adherence to custody orders and upheld penalties for non-compliance.

UNIT 29 - ANCILLARY RELIEFS TO MATRIMONIAL SUITS (MAINTENANCE)

TOPIC OF THE DAY

- TYPES AND NATURE OF ANCILLARY RELIEFS

- PERSONS QUALIFIED FOR GRANT OF ANCILLARY RELIEFS

- THE RELIEFS OF MAINTENANCE

Types and Nature of Ancillary Reliefs

Ancillary reliefs refer to orders made by a court in relation to financial and property matters following the breakdown of a marriage. These are additional to the main relief of divorce or judicial separation. The types of ancillary reliefs in Nigeria include:

1.Maintenance Orders: This involves periodic payments from one spouse to the other for their support or for the support of their children. See the case of Balogun v. Balogun (1969) 1 All NLR 349, where the court made an order for the maintenance of the wife and children.

2.Settlement of Property Orders: These orders determine the distribution of property owned by the spouses. It could involve transferring ownership or creating a charge on the property. See section 72 of the Matrimonial Causes Act (MCA) 2004.

3.Lump Sum Payments: this is a one-time payment made by one spouse to the other for their maintenance or settlement of financial claims. See the case of Dukku v. Dukku (2011) LPELR-CA/J/155/2008, where the court ordered a lump sum payment to the wife.

4.Educational Expenses: this is where the court orders for the payment of educational expenses for the children of the marriage. See section 70(1) of the MCA.

5.Periodic Payments Orders: These involve regular payments (monthly, yearly) from one spouse to another, usually for maintenance. See the case of Otunla v. Otunla (2003) LPELR-CA/I/50/2001.

Persons Qualified for Grant of Ancillary Reliefs

1.Spouses: Either spouse in a marriage can apply for ancillary reliefs. This includes both the husband and the wife. See section 70(1) of the MCA which states that "the court may order either party to the marriage to make to the other such periodical payments...".

2.Children: Ancillary reliefs can also be granted for the benefit of the children of the marriage as seen in the case of Adesanya v. Adesanya (1974) 1 All NLR 23, where maintenance was ordered for the children.

Reliefs of Maintenance

Maintenance refers to the financial support provided by one spouse to the other or to their children following the breakdown of their marriage. Maintenance can be classified into the following:

1.Spousal Maintenance: this talks about financial support paid by one spouse to the other, usually the economically weaker spouse. See section 70(1)(a) of the MCA which provides for the maintenance of a spouse.

2.Child Maintenance: this is the financial support provided for the upbringing and education of the children of the marriage as illustrated in the case of Omoregie v. Omoregie (2009) LPELR-CA/B/95/2007, where the court made an order for the maintenance of the children.

3.Interim Maintenance: This is the temporary maintenance paid until the final determination of the divorce proceedings as provided under section 71(1) of the MCA which allows the court to make an interim maintenance order.

UNIT 28 - DISSOLUTION OF STATUTORY MARRIAGE (DIVORCE)

TOPIC OF THE DAY

- HISTORY OF DIVORCE LAW

- THEORIES OF DIVORCE LAW

- PRESENTATION OF DIVORCE PETITION

- THE GROUND FOR PETITION FOR DIVORCE

History of Divorce Law in Nigeria

The history of divorce law in Nigeria is intertwined with the country's colonial past and its diverse legal systems. Nigeria operates a tripartite legal system comprising English common law, customary law, and Islamic law (Sharia). The Matrimonial Causes Act (MCA) 1970 is the primary legislation governing divorce for statutory marriages in Nigeria.

Pre-Colonial Era

Before colonization, divorce in Nigeria was primarily governed by customary laws, which varied significantly among different ethnic groups. Each ethnic group had its norms and practices regarding marriage and divorce. In some cultures, divorce was relatively easy to obtain, while in others, it was more restrictive.

Colonial Era

With the advent of British colonial rule, English common law began to influence the Nigerian legal system. The introduction of the Marriage Act in 1914 formalized statutory marriage and laid the groundwork for the development of statutory divorce laws. However, customary and Islamic marriages continued to be governed by their respective laws.

Post-Independence Era

After gaining independence in 1960, Nigeria sought to harmonize its legal system. The Matrimonial Causes Act (MCA) 1970 was enacted to provide a unified framework for divorce under statutory marriage. The MCA incorporates elements of English divorce law while adapting to the Nigerian context.

Theories of Divorce Law

Several theories underpin divorce law, providing different perspectives on why marriages break down and how the legal system should respond.

Fault Theory

Under the fault theory, one party must be proven to be at fault for the breakdown of the marriage. Grounds such as adultery, cruelty, and desertion are considered faults. The fault theory emphasizes moral wrongdoing and assigns blame, which can exacerbate conflict between parties.

No-Fault Theory

The no-fault theory allows couples to divorce without assigning blame. Grounds like "irretrievable breakdown of marriage" suffice. This theory focuses on the irreparable nature of the relationship rather than the actions of the parties. The MCA 1970 incorporates no-fault grounds for divorce, emphasizing the breakdown of the marital relationship.

Mixed Theory

The mixed theory combines elements of both fault and no-fault theories. It provides grounds for divorce based on both fault (e.g., adultery, cruelty) and no-fault (e.g., irretrievable breakdown). This approach allows for flexibility in addressing the varied reasons for marital breakdown.

Presentation of Divorce Petition

The presentation of a divorce petition in Nigeria involves several procedural steps governed by the MCA 1970 and relevant rules of court. These procedures includes the following;

1.Initiating a Petition- A divorce petition is initiated by filing a petition in the High Court. The petitioner (the person seeking the divorce) must state the grounds for the divorce and provide supporting evidence. The petition should include details about the marriage, children, and any claims for maintenance or property settlement.

2.Service of Petition- This is where the petition must be served on the respondent (the other spouse). Proper service ensures that the respondent is aware of the proceedings and has an opportunity to respond. Service can be effected personally or through substituted service if personal service is impracticable.

3.Respondent's Answer- This is where the respondent may file an answer to the petition, admitting or denying the allegations and raising any defenses. The respondent can also file a cross-petition, seeking divorce on different grounds.

4.Hearing- this happens if the petition is contested, the court will schedule a hearing where both parties can present evidence and arguments. If the petition is uncontested, the court may grant the divorce based on the documents filed.

5.Decree Nisi and Decree Absolute- this happens if the court is satisfied with the evidence, it will issue a decree nisi, a provisional order for divorce. After a specified period (usually three months), the petitioner can apply for a decree absolute, which finalizes the divorce.

Grounds for Petition for Divorce

The MCA 1970 outlines several grounds for divorce in Nigeria. These grounds can be classified into fault-based and no-fault-based categories.

Fault-Based Grounds

1.Adultery: This is where the petitioner must prove that the respondent committed adultery and that the petitioner finds it intolerable to live with the respondent (See section 15(2)(a) MCA 1970).

2.Cruelty: This is where the petitioner must show that the respondent has behaved in a way that makes it unreasonable to expect the petitioner to continue living with the respondent. See section 15(2)(c) MCA 1970 and the case of Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151 where the court provides insight into the application of cruelty as a ground for divorce, highlighting the importance of proving that the respondent's behavior was intolerable.

3.Desertion: This is where the petitioner must prove that the respondent has deserted them for a continuous period of at least one year immediately preceding the presentation of the petition. See section 15(2)(d) MCA 1970 and the case of Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 where the court discusses the ground of desertion and the necessity for the petitioner to demonstrate that the desertion was continuous and without just cause.

No-Fault-Based Grounds

The most significant no-fault ground is that the marriage has broken down irretrievably. See the case of Williams v. Williams (2008) 10 NWLR (Pt. 1094) 146 where the court highlights the application of the ground of irretrievable breakdown of marriage. The court emphasized the need for concrete evidence to prove that the marriage had indeed broken down irretrievably.This can be proven by showing one of the following:

1.That the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent consents to the decree (See section 15(2)(e) MCA 1970).

2.That the parties have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition (See section 15(2)(f) MCA 1970).

3.That the respondent has failed to comply with a decree or order for the restitution of conjugal rights for at least one year (See section 15(2)(g) MCA 1970).

4.That the parties have been separated and have not lived together for a period of at least one year immediately preceding the presentation of the petition (See section 15(2)(h) MCA 1970).

UNIT 27 - VOID AND VOIDABLE STATUTORY MARRAIGE

TOPIC OF THE DAY

- DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGE

- VOID STATUTORY MARRIAGE

- GROUNDS WHICH RENDER A MARRIAGE VOID

- VOIDABLE STATUTORY MARRIAGE

- GROUNDS WHICH RENDER A MARRIAGE VOIDABLE

- STATUTORY BARS TO A PETITION FOR NULLITY OF VOIDABLE MARRIAGE

- EFFECT OF DECREES OF NULLITY IN RESPECT OF VOID AND VOIDABLE MARRIAGE

Distinction Between Void and Voidable Marriage

A void marriage is one that is considered null and void from its inception. This means it is regarded as never having taken place, and no legal consequences or obligations arise from it. Under Nigerian law, certain conditions automatically render a marriage void. These include the absence of the necessary legal formalities or the presence of certain prohibitive factors at the time of the marriage while voidable marriage, on the other hand, is a valid marriage until it is annulled by a court. Unlike a void marriage, it produces legal consequences and obligations until a decree of nullity is obtained. A voidable marriage can only be annulled on certain grounds, and it remains valid unless and until one of the parties seeks and obtains a decree of nullity.

Void Statutory Marriage

A void statutory marriage is one that fails to meet the essential legal requirements for a valid marriage under statutory law in Nigeria. Such marriages are considered null and void ab initio. See the case of Emefizhe v. Emefizhe (1965) 1 All NLR 233 where the court held that a marriage is void if either party was already married to another person at the time of the marriage and the case of Omoregbe v. Lawani (1980) 3 SC 108 where the court established that marriages within the prohibited degrees of consanguinity are void.

Grounds Which Render a Marriage Void

1.Existing Marriage: this happens if either party is already married to someone else at the time of the marriage (See section 33(1) of the Marriage Act).

2.Prohibited Degrees of Consanguinity: this is where marriages between close relatives, such as siblings, are void (See sections 3 and 4 of the Matrimonial Causes Act).

3.Lack of Consent: this happens if either party did not give valid consent, due to duress, fraud, or mistake, the marriage is void (See section 33(1) of the Marriage Act).

4.Non-compliance with Formalities: this is where failure to comply with the prescribed formalities for contracting a statutory marriage, such as not giving proper notice of the marriage or not obtaining the necessary licenses makes the marriage void (See sections 27-29 of the Marriage Act).

5.Underage Parties: this includes marriages involving parties who are under the legal age of marriage without proper consent (See sections 18 and 33(1) of the Marriage Act).

Voidable Statutory Marriage

A voidable statutory marriage is one that is valid until it is annulled by a court. It can be annulled on specific grounds, but it remains legally effective until such an annulment is obtained. See the case of C.M.C.S v. A.T.S (2002) 1 SCNJ 170 where the court annulled the marriage on the ground of non-consummation due to the willful refusal of the wife and the case of A.S. v. S.S. (1972) 1 All NLR (Pt. 2) 228 where the court held that a marriage is voidable if at the time of the marriage, either party was suffering from a venereal disease in a communicable form without the knowledge of the other party.

Grounds Which Render a Marriage Voidable

1.Non-consummation: this happens if the marriage has not been consummated due to the willful refusal of one party (See section 5(1)(a) of the Matrimonial Causes Act).

2.Mental Disorder: this happens if either party was suffering from a mental disorder at the time of the marriage, rendering them unfit for marriage (See section 5(1)(b) of the Matrimonial Causes Act).

3.Venereal Disease: this happens if at the time of the marriage, either party was suffering from a venereal disease in a communicable form without the knowledge of the other party (See section 5(1)(c) of the Matrimonial Causes Act).

4.Pregnancy by Another Man: this happens if the wife was pregnant by another man at the time of the marriage without the knowledge of the husband (See section 5(1)(d) of the Matrimonial Causes Act).

Statutory Bars to a Petition for Nullity of Voidable Marriage

There are certain statutory bars that can prevent a petition for the nullity of a voidable marriage from being entertained by the court. See the case of Awofeso v. Awofeso (1968) 1 All NLR 389 where the court dismissed the petition for nullity on the grounds of delay and continued cohabitation after discovering the defect. These bars or defenses includes:

1.Delay in Bringing the Petition: this happens if the petitioner fails to bring the petition within a reasonable time after discovering the grounds for nullity (See section 35 of the Matrimonial Causes Act).

2.Knowledge of the Defect: this happens if the petitioner knew of the defect and nevertheless continued to live with the respondent as husband and wife (See section 36 of the Matrimonial Causes Act).

3.Appropriating Conjugal Rights: this happens if the petitioner has, with knowledge of the defect, appropriated or exercised any conjugal rights (See section 37 of the Matrimonial Causes Act).

Effect of Decrees of Nullity in Respect of Void and Voidable Marriages

Void Marriages

A decree of nullity in respect of a void marriage confirms that the marriage was invalid from the beginning. The parties are regarded as never having been married, and no legal rights or obligations arise from the union. Any children born of the union are considered legitimate if born while the parties reasonably believed themselves to be married (See section 69 of the Matrimonial Causes Act).

Voidable Marriages

A decree of nullity in respect of a voidable marriage terminates the marriage from the date of the decree, not retrospectively. The marriage is considered valid up to the point of annulment. Legal rights and obligations incurred during the marriage remain valid, and children born of the union are legitimate. See section 69 of the Matrimonial Causes Act and the case of Olowofoyeku v. Olowofoyeku (2011) LPELR-8976(CA) where the court held that a decree of nullity for a voidable marriage takes effect from the date of the decree, not retrospectively, and all legal rights and obligations incurred during the marriage remain valid.

UNIT 26 - VALIDITY OF STATUTORY MARRIAGE

TOPIC OF THE DAY

- REGULATORY LAWS FOR STATUTORY MARRIAGE

- FORMAL VALIDITY OF STATUTORY MARRIAGE

- ESSENTIAL VALIDITY OF STATUTORY MARRIAGE

- THE LEGAL STATUS OF FOREIGN MARRIAGES IN NIGERIA

- LEGAL EFFECTS OF STATUTORY MARRIAGE

Regulatory Laws for Statutory Marriage in Nigeria

Statutory marriage in Nigeria is governed primarily by the Marriage Act, Cap M6, Laws of the Federation of Nigeria 2004. This Act outlines the legal framework for conducting, validating, and dissolving statutory marriages. See the case of Bronik Motors Ltd v Wema Bank Ltd (1983) 6 SC 158 where the court establishes the principle of adherence to statutory provisions for the validity of actions and the case of Ikpeazu v Ikpeazu (2016) LPELR-40852(CA) where the court affirms the necessity of following statutory procedures in marriage and its dissolution.

The Marriage Act (Cap M6, LFN 2004) lays down the procedures and requirements for statutory marriages. See sections 7-14 which outlines the preliminary requirements for marriage, including the issuance of a notice of marriage. Section 22 which specifies prohibited degrees of consanguinity and affinity and sections 30-33 which detailed the formalities for the celebration of marriage.

The Matrimonial Causes Act (Cap M7, LFN 2004) governs the dissolution of marriage and related matters. See section 3 which provides the grounds for the dissolution of marriage and sections 15-16 which outlines the conditions under which a marriage can be declared void or voidable.

Formal Validity of Statutory Marriage

Formal validity refers to the compliance with prescribed procedures and forms stipulated by law for the celebration of a statutory marriage. Key elements include:

1.Notice of Marriage: this is where a formal notice must be given to the Registrar of Marriages at least 21 days before the marriage. See section 7 of the Marriage Act.

2.Marriage License: this is where after the notice, a marriage license must be obtained. See sections 9-14 of the Marriage Act.

3.Marriage Ceremony: The ceremony must be conducted by a recognized officiant in a licensed place of worship or the office of the Registrar. See sections 30-31 of the Marriage Act.

4.Presence of Witnesses: The marriage must be witnessed by at least two persons under section 33 of the Marriage Act.

Essential Validity of Statutory Marriage

Essential validity refers to the substantive conditions that must be fulfilled for a marriage to be valid. These include:

1.Consent: this is where both parties must voluntarily consent to the marriage. See the case of Labinjo v Abake (1924) 5 NLR 33 where the court emphasizes the necessity of proper consent for a valid marriage.

2.Legal Capacity: this is where both parties must have the legal capacity to marry, which includes being of legal age (18 years and above, or having parental consent if under 21 years) and not being within the prohibited degrees of relationship. See section 22 of the Marriage Act. See the case of Adeseye v Taiwo (1956) 1 FSC 84 where the court highlights the requirement of legal capacity and single status

3.Single Status: this requires that neither party should be married to someone else at the time of the marriage.

The Legal Status of Foreign Marriages in Nigeria

Foreign marriages are recognized in Nigeria under certain conditions. See section 49 of the Marriage Act which provides that a marriage celebrated outside Nigeria shall be valid if it complies with the law of the place where the marriage was celebrated (lex loci celebrationis).

Requirements for Recognition

1.Compliance with Local Law: This requires that the marriage must comply with the local laws of the country where it was celebrated. See the case of Okoli v Okoli (2003) 8 NWLR (Pt. 823) 565 where the court recognized a foreign marriage that complied with the law of the place of celebration.

2.Capacity and Consent: This is where both parties must have the capacity to marry and must consent to the marriage.

3.Not Contrary to Public Policy: This requires that the marriage must not be contrary to Nigerian public policy.

Legal Effects of Statutory Marriage

Statutory marriage in Nigeria has several legal effects, including:

1.Monogamy: Statutory marriage imposes a requirement of monogamy. Any subsequent marriage by either party while the statutory marriage subsists is void. See section 33 of the Marriage Act.

2.Rights and Obligations: this is where both parties acquire mutual rights and obligations, including rights to consortium, maintenance, and inheritance. See the case of Oloko v Oloko (2013) LPELR-20461(CA) where the court clarified the mutual rights and obligations of spouses in a statutory marriage.

3.Joint Property Ownership: This is where there is a presumption of joint ownership of property acquired during the marriage, subject to proof to the contrary.

4.Custody of Children: this happens in the event of dissolution, the court determines custody of children based on the best interest of the child. See the case of Williams v Williams (2018) LPELR-44425(CA) where the court discussed the principles governing custody and maintenance in the event of marriage dissolution.

5.Maintenance and Alimony: This is where the court can make orders for maintenance and alimony for either party upon dissolution.

UNIT 25 - COURT PROCESSES

TOPIC OF THE DAY

- COURT PROCESSES REQUIRED FOR DISSOLUTIONS OF MARRIAGE

- COURT PROCESSES REQUIRED FOR NULLITY OF MARRIAGE

- LEAVE OF COURT

- FILING OF PROCESSES

- THE PETITION DECREE OF DISSOLUTION OF MARRIAGE

Court Processes Required for Dissolution of Marriage

1.Dissolution of marriage, commonly referred to as divorce, is the legal process by which a marriage is formally terminated. In Nigeria, this process is governed primarily by the Matrimonial Causes Act (MCA) and the Matrimonial Causes Rules (MCR).

2.Grounds for Dissolution- According to Section 15(1) of the MCA, a marriage can only be dissolved if it has broken down irretrievably. See section 15(2) which outlines the specific grounds for proving an irretrievable breakdown.

3. Filing of the Petition- The process begins with the filing of a petition for dissolution of marriage in the appropriate High Court. The petition must state the ground(s) for seeking the divorce and should include particulars of the facts relied upon to establish those grounds accompanied by an affidavit verifying the facts of the petition under Section 37 of the MCA.

4. Service of the Petition- This is where the petition and accompanying documents must be served on the respondent. This can be done through personal service or substituted service if personal service is impracticable. See section 38 of the MCA.

5. Respondent’s Response- This is where the respondent may file an answer to the petition, either admitting or denying the allegations. The respondent can also file a cross-petition, seeking relief on different grounds. See section 41 of the MCA.

6. Hearing- The case proceeds to trial where both parties present their evidence. This may include oral testimony, documentary evidence, and witness statements. The court then evaluates the evidence to determine if the marriage has indeed broken down irretrievably. See section 82 of the MCA.

7. Decree Nisi and Decree Absolute

a.Decree Nisi: This happens if the court is satisfied that the marriage has broken down irretrievably, it grants a decree nisi. This is a provisional order that does not terminate the marriage immediately. See section 57 of the MCA.

b.Decree Absolute: This is where decree nisi becomes absolute after three months, unless there is a valid objection. The petitioner must apply for the decree nisi to be made absolute, at which point the marriage is formally dissolved. See section 58 of the MCA.

Court Processes Required for Nullity of Marriage

1. A decree of nullity is a legal declaration that a marriage was never valid. Grounds for nullity are divided into void and voidable marriages.

2. Grounds for Nullity

a.Void Marriages: These are marriages that are considered null from the beginning (ab initio).

b.Voidable Marriages: These are marriages that are valid until annulled.

3. Filing of Petition- The process begins with the filing of a petition for nullity of marriage in the appropriate High Court. The petition must state the ground(s) on which nullity is sought and provide particulars of the facts relied upon. See section 39 of the MCA.

4. Service of the Petition- This is where the petition must be served on the respondent through personal service or substituted service if necessary. See section 38 of the MCA.

5. Respondent’s Response- This is where the respondent may file an answer to the petition, either admitting or denying the allegations.

6. Hearing- This is where the case proceeds to trial, where the court hears evidence from both parties. The court must be satisfied that the grounds for nullity are proven before granting a decree of nullity. See section 82 of the MCA.

Leave of Court

Leave of court refers to the permission granted by the court to perform a certain act. This is required in specific circumstances to ensure proper judicial oversight.

Situations Requiring Leave of Court

1.Filing within two years of marriage: See section 30(1) of the MCA which provides that a petition for dissolution or nullity of marriage filed within two years of the marriage requires leave of court.

2.Appeals: This is where certain appeals and applications in matrimonial causes may require leave of court. See section 95 of the MCA.

Application for Leave

To apply for leave, the party seeking leave must file a motion supported by an affidavit stating the reasons for the application and the court will hear the application and may grant or refuse leave based on the merits of the case.

Filing of Processes

Filing of processes involves submitting various legal documents to the court for consideration and action.

Key Documents in Matrimonial Proceedings

1.Petition: This is the initiating document for divorce or nullity, detailing the grounds and facts relied upon.

2.Affidavit: This is a sworn statement supporting the facts of the petition.

3.Notice of Address for Service: This indicates where subsequent documents should be served on the parties.

Service of Processes

The petitioner must serve the respondent personally, ensuring they receive the documents directly and if personal service is impracticable, the court may order substituted service, such as by newspaper publication or delivery to a third party. See section 38 of the MCA.

Petition for Decree of Dissolution of Marriage

1. Petition

The petition must include:

a.The full names and addresses of the parties.

b.The date and place of the marriage.

3.The ground(s) for seeking dissolution.

4.Facts supporting the ground(s).

5.Details of any children of the marriage and arrangements for their care.

2. Decree Nisi- This is a provisional order indicating that the court is satisfied the marriage should be dissolved, but it does not terminate the marriage immediately. The decree nisi allows time for any objections to be raised. See section 57 of the MCA.

3. Decree Absolute- This is the final order that legally terminates the marriage. The decree absolute can be applied for three months after the decree nisi is granted, provided there are no valid objections. See section 58 of the MCA.

UNIT 24 - FORMAL VALIDITY AND PROCEDURAL DEFECTS IN STATUTORY MARRIAGE

TOPIC OF THE DAY

- MEANING OF PROCEDURAL DEFECTS

- NATURE OF PROCEDURAL DEFECTS

- TYPES OF PROCEDURAL DEFECTS

- LEGAL EFFECTS OF PROCEDURAL DEFECTS

- INTERPRETATION OF PROCEDURAL DEFECTS

- APPLICATION OF PROCEDURAL DEFECTS

Meaning of Procedural Defects

Procedural defects refer to errors, mistakes, or omissions that occur during the legal process. These defects typically do not affect the substantive rights or merits of a case but concern the manner in which the case is handled through the legal system. Procedural defects can arise at any stage of litigation, from the filing of a case to the final judgment.

Nature of Procedural Defects

Procedural defects are technical in nature and relate to the processes and methods by which legal matters are brought before the court and conducted. These defects can significantly impact the administration of justice, as they may delay proceedings, cause additional costs, or lead to the dismissal of cases. While some procedural defects can be cured or rectified, others may be fatal to the continuation of the case.

Types of Procedural Defects

Procedural defects can be categorized into various types:

1.Jurisdictional Defects: These are errors relating to the court's authority to hear a case. For instance, if a case is filed in the wrong court or tribunal. See the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 where the Supreme Court held that a court is competent when it is properly constituted with respect to the number and qualification of its members, the subject matter of the case is within its jurisdiction, and the case comes before it in accordance with the procedure prescribed.

2.Service of Process Defects: These are issues arising from improper or lack of service of legal documents to parties involved in a case. See the case of Skenconsult v. Ukey (1981) 1 SC 6 where the Supreme Court held that failure to serve a writ of summons on the defendant as required by law is a fundamental defect that renders the entire proceedings a nullity.

3.Non-compliance with Court Rules: This happens if there is failure to adhere to procedural rules set by the court, such as filing deadlines, form requirements, or procedural steps. See the case of Nwankwo v. Nwankwo (1992) 2 NWLR (Pt. 226) 740 where the Court of Appeal emphasized the importance of complying with procedural rules, stating that non-compliance could lead to the dismissal of an action.

4.Improper Pleadings: These are errors or omissions in the legal documents submitted to the court, such as incorrect or insufficient details in a complaint or petition. See the case of Nigerian Bottling Co. Ltd v. Constance (1985) 2 NWLR (Pt. 7) 259 where the court held that pleadings must be precise and provide sufficient details to inform the other party of the case they have to meet.

5.Non-compliance with Statutory Provisions: This happens when there is a failure to follow specific procedural requirements set out in legislation. See the case of Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt. 339) 416 where the court held that non-compliance with statutory provisions governing procedures can invalidate proceedings.

6.Irregularity in Court Orders or Judgments: These are errors in the drafting, issuance, or execution of court orders or judgments. See the case of Edukugbo v. Funchal (Nig) Ltd (1994) 3 NWLR (Pt. 334) 678 where the court held that a judgment that does not comply with procedural requirements may be set aside.

Legal Effects of Procedural Defects

The legal effects of procedural defects vary depending on the type and severity of the defect. The consequences can include:

1.Dismissal of the Case: This happens when there is a serious procedural defects, such as lack of jurisdiction, it can result in the outright dismissal of the case. See the case of Eboh v. Akpotu (1968) 1 All NLR 220 where the Supreme Court held that a court must dismiss a case if it lacks jurisdiction.

2.Striking Out of Pleadings: This is where defective pleadings can be struck out, requiring the affected party to amend and refile them. See the case of Shell Petroleum Development Company v. Maxon (2001) 9 NWLR (Pt. 719) 541 where the court emphasized that defective pleadings must be struck out to maintain the integrity of the judicial process.

3.Adjournment of Proceedings: This is where the court may adjourn proceedings to allow for the rectification of minor procedural defects. See the case of Ojukwu v. Military Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 where the court held that adjournments may be granted to correct minor procedural defects.

4.Setting Aside of Orders or Judgments: This happens when orders or judgments obtained through significant procedural defects may be set aside. See the case of Skenconsult v. Ukey (1981) 1 SC 6 where the court held that any order or judgment obtained without proper service is a nullity and must be set aside.

Interpretation of Procedural Defects

Courts interpret procedural defects in the context of ensuring justice and fairness. The key principles in interpreting procedural defects include:

1.Substantial Justice over Technicalities: This is when courts often prioritize substantial justice over strict adherence to procedural rules. Minor defects that do not affect the merits of the case or cause injustice may be overlooked. See the case of Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 where the court held that substantial justice should not be sacrificed on the altar of technicalities.

2.Curable vs. Fatal Defects: These are some procedural defects which are considered curable and can be rectified through amendments or procedural motions, while others are fatal and cannot be remedied. See the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 where the court distinguished between curable defects and those that are fatal to the proceedings.

3.Provisions of Law: This is where specific provisions of applicable laws and rules guide the interpretation and handling of procedural defects. See the Civil Procedure Rules of various states, High Court Rules, Federal High Court Rules.

Application of Procedural Defects

The application of procedural defects involves identifying, addressing, and rectifying such defects in legal proceedings. Key aspects include:

1.Raising Procedural Defects: This is when parties can raise procedural defects at any stage of the proceedings, usually through preliminary objections or motions. See the case of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 where the court held that procedural defects should be raised as early as possible to avoid unnecessary delays.

2.Court's Discretion: This is where courts have the discretion to determine the impact of procedural defects and decide whether to permit rectification or impose sanctions. See the case of Williams v. Hope Rising Voluntary Funds Society (1982) 1 All NLR 1 where the court emphasized the discretionary power of judges in handling procedural defects.

3.Compliance with Rectification Orders: This is where parties are expected to comply with court orders to rectify procedural defects within specified timeframes to avoid further sanctions or dismissal. See the case of Chief Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172 where the court held that failure to comply with rectification orders could result in dismissal of the case.

UNIT 23 - NULLITY AND RECTIFICATION OF CUSTOMARY LAW MARRIAGE

TOPIC OF THE DAY

- NULLITY OF CUSTOMARY LAW MARRIAGE

- RECTIFICATION OF CUSTOMARY LAW MARRIAGE

- GROUNDS ON WHICH A CUSTOMARY LAW MARRIAGE IS VOID

- GROUNDS ON WHICH A CUSTOMARY LAW MARRIAGE IS VOIDABLE

Nullity of Customary Law Marriage

A customary law marriage in Nigeria can be declared null and void under specific circumstances. This means that the marriage is considered to have never existed legally. 

Rectification of Customary Law Marriage

Rectification refers to correcting defects in the marriage procedure or documentation. If a customary law marriage is found to have procedural defects but the essential requirements are met, rectification may be sought. This usually involves performing omitted customary rites or correcting errors in the marriage documentation. Rectification does not apply if the marriage is void ab initio.

Grounds on which a Customary Law Marriage is Void

A void marriage is one that is invalid from the outset. Under Nigerian customary law, the following are grounds on which a customary law marriage can be declared void:

1.Prohibited Degrees of Consanguinity and Affinity: This is where marriages within certain familial relationships are prohibited. For instance, marriage between siblings, half-siblings, or close cousins is not allowed. See the case of Okpanum v. Okpanum (1972) 1 All NLR 248.

2.Existing Marriage: This happens if either party is already married under statutory law or another subsisting customary law marriage, the subsequent marriage is void. See section 35(1) of the Marriage Act.

3.Lack of Consent: This is where both parties must voluntarily consent to the marriage. A marriage contracted without the free consent of both parties is void. See the case of Osayi v. Osayi (2014) LPELR-24377(CA).

4.Non-Observance of Customary Rites: This is where the customary rites and formalities specific to the community must be observed. Failure to perform essential rites can render the marriage void. See the case of Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210.

5.Impediments to Marriage: This is where certain impediments, such as mental incapacity or extreme youth, can make a marriage void if the individual lacks the capacity to understand the nature of the marriage contract.

Grounds on which a Customary Law Marriage is Voidable

A voidable marriage is one that is valid until it is annulled by a court. The marriage remains valid until a decree of nullity is obtained. Grounds for a customary law marriage to be declared voidable include:

1.Lack of Capacity: This happens if one party was incapable of consummating the marriage due to physical or mental incapacity, the marriage can be voidable. See the case of Obiekwe v. Obiekwe (2012) LPELR-7990(CA).

2.Duress or Fraud: This happens if consent was obtained through duress or fraudulent means, the marriage can be voidable. See the case of Adebayo v. Adebayo (2007) LPELR-8503(CA).

3.Pregnancy by Another Man: This happens if the wife was pregnant by another man at the time of the marriage, the husband may seek to annul the marriage. See the case of Nwankwo v. Nwankwo (2014) LPELR-24365(CA).

4.Impotence: This happens if one party was impotent at the time of marriage and remains so, the marriage can be voidable. See the case of Adesubokan v. Yinusa (1971) 1 All NLR 225.

UNIT 22 - BARS TO GRANTING DECREE OF JUDICIAL SEPARATION AND DIVORCE

TOPIC OF THE DAY

- THE BARS OR DEFENCES TO PETITIONS FOR DIVORCE OR JUDICIAL SEPARATION

- ABSOLUTE BARS

- DISCRETIONARY BARS

The bars or defences to petitions for divorce or judicial separation

In Nigerian matrimonial law, there are two categories of bars that can prevent a petition for divorce and these are absolute bars and discretionary bars. These bars are established under the Matrimonial Causes Act (MCA) and relevant case laws. Understanding these bars is crucial for both petitioners and respondents in divorce cases. Below, I will discuss these bars, providing relevant sections from the MCA and case law to illustrate how they are applied.

Absolute Bars to Divorce

Absolute bars are defenses that, if proven, automatically prevent a court from granting a divorce, regardless of any other circumstances. These bars are strictly applied and leave no room for judicial discretion.

1. Collusion- this occurs when both parties agree to fabricate or exaggerate grounds for divorce in order to deceive the court. See section 26(3) of the Matrimonial Causes Act which provides that if it is established that there is collusion between the parties to obtain a divorce, the petition will be dismissed outright and the case of Osayande v. Osayande (1973) NMLR 98 where the court dismissed the divorce petition after finding that both parties had colluded to fabricate evidence of cruelty.

2. Connivance- this involves one spouse consenting to or encouraging the other's misconduct, which is later used as a ground for divorce. See section 26(1) of the MCA which states that a divorce petition may be defeated if it is shown that the petitioner connived at the respondent's misconduct and see also the case of Adelakun v. Adelakun (1961) WNLR 17 where the petitioner’s encouragement of the respondent’s adultery led to the dismissal of the divorce petition on the grounds of connivance.

3. Condonation- this refers to the forgiveness of a matrimonial offense by the aggrieved spouse, with the intention of resuming or continuing the marriage. See section 26(2) of the MCA which provides that if the petitioner has forgiven the respondent and continued to live with them after becoming aware of the matrimonial offense, this can bar the petition and the case of Dunham v. Dunham (1950) 1 FSC 29 where the petitioner’s continued cohabitation with the respondent after discovering adultery resulted in the court recognizing condonation as a valid defense.

Discretionary Bars to Divorce

Discretionary bars are defenses that, if proven, it gives the court the option to refuse a divorce. The court has the discretion to consider the circumstances of the case and decide whether to grant or dismiss the petition.

1. Delay in Filing Petition- this is where unreasonable delay in filing a petition after the grounds for divorce have arisen can be a discretionary bar. See the case of Aina v. Aina (1993) 3 NWLR (Pt. 278) 238 where the court dismissed the petition due to the petitioner’s significant delay in filing for divorce after discovering the respondent’s misconduct.

2. Recrimination- this involves the respondent proving that the petitioner is also guilty of a matrimonial offense that could be grounds for divorce. See section 26(4) of the MCA which allows the court to dismiss a petition if the petitioner is found to have committed a similar offense and see also the case of Nwankwo v. Nwankwo (1981) 1 NCLR 288 where the court dismissed the petition after finding that the petitioner’s own misconduct significantly contributed to the breakdown of the marriage.

3. Hardship to the Respondent- this happens if granting the divorce would cause undue hardship to the respondent, the court may exercise its discretion to refuse the petition. See section 26(4) of the MCA which provides that the court may refuse a divorce if it would result in significant hardship to the respondent and see also the case of Adeyemi v. Adeyemi (1976) 1 NMLR 36 where the court considered the potential hardship to the respondent and dismissed the divorce petition to prevent undue suffering.

4. Conduct Condemned by the Petitioner- this happens if the petitioner’s own conduct has contributed to the respondent’s behavior or is equally reprehensible, it can serve as a discretionary bar. See section 26(4) of the MCA which provides that the court may dismiss the petition if the petitioner’s conduct has directly contributed to the matrimonial offense complained of and see also the case of Okoro v. Okoro (1999) 10 NWLR (Pt. 622) 517 where the court found that the petitioner’s misconduct played a significant role in the marital breakdown, leading to the dismissal of the petition.

UNIT 21 - RESTITUTION OF CONJUGAL RIGHT AND JACTITATION OF MARRIAGE CONTENTS

TOPIC OF THE DAY

- MEANING OF RESTITUTION OF CONJUGAL RIGHTS

- GROUNDS FOR PETITION FOR RESTITUTION OF CONJUGAL RIGHTS

- MODE OF PETITION FOR RESTITUTION OF CONJUGAL RIGHTS

- POST RESTITUTION REQUIREMENTS

- PETITION FOR JACTITATION OF MARRIAGE

- RECONCILIATION IN MATRIMONIAL PROCEEDINGS

- STEPS IN RECONCILIATION PROCESS

Meaning of Restitution of Conjugal Rights

Restitution of conjugal rights is a legal remedy available in matrimonial law, whereby a spouse can compel the other spouse to resume cohabitation and fulfill marital duties. It is grounded in the principle that spouses owe each other companionship, consortium, and conjugal relations. See the case of Olufemi v. Olufemi (1971) All NLR 244, where the court emphasized the importance of mutual consent and reasonable grounds in matters of conjugal rights.

Grounds for Petition for Restitution of Conjugal Rights

A petition for restitution of conjugal rights can be filed when one spouse has withdrawn from the society of the other without reasonable cause. Key grounds include:

1.Withdrawal from Cohabitation: This is where one spouse has left the matrimonial home or refuses to live with the other.

2.Lack of Justifiable Cause: This is where the withdrawal must be without any lawful or reasonable cause.

3.Failure to Resume Conjugal Rights: This is where despite requests, the spouse who withdrew has not returned.

Mode of Petition for Restitution of Conjugal Rights

The process for filing a petition for restitution of conjugal rights involves the following steps:

1.Filing the Petition: This is where the aggrieved spouse files a petition in the High Court or a designated matrimonial court.

2.Service of Petition: This is where the petition must be served on the respondent spouse.

3.Response: This is where the respondent can file a reply, contesting the petition or presenting reasons for their withdrawal.

4.Court Hearing: This is where the court will conduct a hearing to examine the circumstances and determine if there is a justifiable reason for the withdrawal.

5.Decree for Restitution: This happens if the court finds no reasonable cause for the withdrawal, it may issue a decree ordering the respondent to resume cohabitation. 

Post Restitution Requirements

Once a decree for restitution of conjugal rights is granted, the respondent must resume cohabitation within a specified period. Failure to comply can lead to further legal actions, such as:

1.Sequestration of Property: This is where the court may order the sequestration of the respondent's property.

2.Grounds for Divorce: This is where the non-compliance with the decree can be grounds for filing a divorce petition under section 15 (2)(f) of the Matrimonial Causes Act, Cap M7 LFN 2004.

Petition for Jactitation of Marriage

Jactitation of marriage occurs when one person falsely claims to be married to another, thereby damaging the latter's reputation and causing legal and social complications. A petition for jactitation of marriage seeks to stop such false claims and protect the rights of the aggrieved person. See the case of Nwosu v. Nwosu (1973) 3 ECSLR 670, where the court dealt with issues of false claims of marriage and their legal implications.

Mode of Petition for Jactitation of Marriage

The process for filing a petition for jactitation of marriage includes the following:

1.Filing the Petition: This is where the aggrieved party files a petition in the High Court.

2.Service of Petition: This is where the petition must be served on the person making the false claims.

3.Response: This is where the respondent can file a reply, either admitting or denying the allegations.

4.Court Hearing: This is where the court will conduct a hearing to examine the evidence and determine the truth of the claims.

5.Decree for Jactitation: This happens if the court finds that the claims are false, it will issue a decree prohibiting the respondent from making further false claims.

Reconciliation in Matrimonial Proceedings

Reconciliation refers to efforts made by the parties to a marriage to resolve their differences and restore their marital relationship. It is an important aspect of matrimonial proceedings, as it aims to preserve the marriage and avoid the emotional and financial costs of divorce. See the case of Williams v. Williams (1964) 1 All NLR 101, where the court emphasized the need for reconciliation efforts in matrimonial disputes. Under the Matrimonial Causes Act, Cap M7 LFN 2004, there are specific provisions aimed at promoting reconciliation and they include:

1.Duty of Legal Practitioners: See section 11 which mandates that legal practitioners should encourage reconciliation between parties before filing a divorce petition.

2.Role of the Court: See section 11(2) which requires the court to adjourn proceedings and give parties an opportunity to reconcile, if there is a reasonable prospect of reconciliation.

Steps in Reconciliation Process

1.Encouragement by Lawyers: This is where legal practitioners must discuss the possibility of reconciliation with their clients and explore all avenues for resolving disputes amicably.

2.Adjournment by Court: This is where the court may adjourn the case to give the parties time to attempt reconciliation.

3.Counseling and Mediation: This is where parties may be referred to counseling or mediation services to help them address their issues.

4.Review of Progress: This is where the court will review the progress of reconciliation efforts and decide on the next steps based on the outcome.

UNIT 20 - JUDICIAL SEPARATION

TOPIC OF THE DAY

- MEANING OF JUDICIAL SEPARATION

- GROUNDS FOR MAKING A DECREE

- EFFECT OF DECREE

- DISCHARGE OF DECREE OF JUDICIAL SEPARATION

- PROCEDURE FOR INSTITUTING ACTION

Meaning of Judicial Separation

Judicial separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. Unlike divorce, judicial separation does not terminate the marriage but allows the spouses to live apart. This decree can address issues like maintenance, child custody, and property division without dissolving the marital bond.

Grounds for Making a Decree of Judicial Separation

Under Nigerian law, specifically the Matrimonial Causes Act (MCA), Cap M7, LFN 2004, provides for the grounds for judicial separation and are similar to those for divorce. They include:

1.Adultery: If a spouse has committed adultery and the petitioner finds it intolerable to live with them as provided under (Section 15(2)(a) it can be a ground for judicial separation.

2.Unreasonable Behaviour: If a spouse has behaved in such a way that the petitioner cannot reasonably be expected to live with them as provided under (Section 15(2)(c)) it can be a ground for judicial separation. See the case of Williams v. Williams (1994) 1 NWLR (Pt. 321) 329 where the court illustrated unreasonable behaviour as grounds for judicial separation.

3.Desertion: If a spouse has deserted the petitioner for a continuous period of at least one year as provided under (Section 15(2)(d) it can also be a ground for judicial separation. See the case of Ibeawuchi v. Ibeawuchi (1978) 3 SC 175 where the court examined the conditions under which desertion could be proven.

4.Living Apart: If the spouses have lived apart for a continuous period of at least two years, and both consent to the decree as provided under (Section 15(2)(e) it can also be a ground for judicial separation.

5.Failure to Maintain: If the respondent has failed to provide maintenance for the petitioner or the children of the marriage as provided under (Section 39(1) then it can be a ground for judicial separation.

Effect of Decree of Judicial Separation

A decree of judicial separation has several legal effects and they include:

1.Separation of Finances: This is where the spouses are no longer financially tied, and each may be responsible for their own debts and obligations.

2.Custody of Children: This is where the court can make orders regarding the custody and maintenance of children as provided under section 70.

3.Property Division: This is where the court can divide matrimonial property or make orders regarding its use as provided under section 72. See the case of Omotunde v. Omotunde (2000) 9 NWLR (Pt. 672) 310 where the court dealt with the division of matrimonial property following a decree of judicial separation.

4.Inheritance Rights: The decree does not affect inheritance rights, as the marriage remains legally intact.

5.Remarriage: This is where the spouses cannot remarry, as they are still legally married.

Discharge of Decree of Judicial Separation

A decree of judicial separation can be discharged under certain circumstances:

1.Reconciliation: If the spouses reconcile and resume cohabitation, they can apply to the court to have the decree discharged.

2.Court Order: The court may discharge the decree if it is convinced that the circumstances that led to the decree no longer exist or have been resolved.

Procedure for Instituting Action for Judicial Separation

The procedure for instituting an action for judicial separation in Nigeria involves several steps:

1.Filing a Petition: This is where the petitioner must file a petition in the High Court. This petition should state the grounds for judicial separation and include relevant evidence as provided under MCA section 39.

2.Service of Petition: The petition must be served on the respondent. However, the court may order substituted service if the respondent cannot be located.

3.Response: This is where the respondent may file an answer to the petition, either admitting or contesting the grounds for judicial separation.

4.Hearing: This is where the court will schedule a hearing to examine the evidence presented by both parties.

UNIT 19 - THE COURT PROCESS

TOPIC OF THE DAY

- THE COURT PROCESS

- THE PETITION

- ORDER V-PETITION

- PETITION FOR DECREE OF DISSOLUTION OF MARRIAGE

- PETITION FOR NULITY OF MARRIAGE

- PETITION FOR JUDICIAL SEPARATION

- PETITION FOR THE DECREE OF DISSOLUTION OF MARRIAGE

- MARRIAGE

- BIRTH OF PETITIONER AND RESPONDENT

- DOMICILE OR RESIDENCE

- COHABITATION

- CHILDREN

- PREVIOUS PROCEEDINGS

- CONDONATION

- CONNIVANCE

- COLLUSION

The Court Process

The court process in family law cases involves several steps from filing the petition to the final decree. See the Matrimonial Causes Act (MCA) Cap M7, LFN 2004.. The key stages are:

1.Filing the Petition: This is where the petitioner (the person initiating the proceedings) files a petition in the High Court.

2.Service of Petition: This is where the respondent (the other party) must be served with the petition.

3.Respondent’s Reply: This is where the respondent has the opportunity to reply to the petition.

4.Pre-trial Conference: This is to narrow the issues and explore settlement possibilities.

5.Trial: This is where evidence is presented, and witnesses may be called.

6.Judgment: This is where the court issues a decree based on the merits of the case.

The Petition

A petition in family law is the formal written application to the court seeking a specific relief. It must be signed by the petitioner and must clearly state the grounds for the relief sought.

Order V - Petition

Order V of the Matrimonial Causes Rules outlines the general rules regarding petitions in matrimonial causes. It includes:

1.Form and Content of Petition: This should include details such as names, addresses, and grounds for the petition.

2.Verification of Petition: The petition must be verified by affidavit.

3.Service of Petition: This requires that proper service must be carried out on the respondent.

Petition for Decree of Dissolution of Marriage

This petition seeks to legally end a marriage and the grounds for dissolution includes Adultery, Desertion, Cruelty and Living apart for a continuous period of two years. See the case of Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 where the court emphasized that the petitioner must prove the grounds for dissolution.

Petition for Nullity of Marriage

A petition for nullity seeks to declare a marriage void or voidable and the grounds for dissolution includes Incestuous or polygamous marriage (void ab initio), Non-consummation due to incapacity, Mental disorder of either party. See the case of Ibeawuchi v. Ibeawuchi (1978) 1 LRN 63 where the court established grounds for voidable marriages.

Petition for Judicial Separation

This petition allows couples to live apart without dissolving the marriage and the grounds are similar to those for dissolution. See sections 39 and 40 of the Matrimonial Causes Act.

Petition for the Decree of Dissolution of Marriage (Reiteration)

The grounds and process for filing this petition are reiterated for clarity. It is important to follow the statutory requirements strictly to avoid dismissal.

Marriage

Marriage in Nigeria is provided for under the Marriage Act Cap M6, LFN 2004 and it can be:

1.Statutory: that is governed by the Marriage Act.

2.Customary: that is governed by native laws and customs.

3.Islamic: that is governed by Sharia law in applicable states.

Birth of Petitioner and Respondent

Petitions must include the dates and places of birth of both parties. This information helps establish the identities and legal capacities of the parties.

Domicile or Residence

Domicile or residence determines the court's jurisdiction. Generally, the petitioner must prove that they have been domiciled in Nigeria for at least 12 months before filing the petition. See the case of Bello v. Bello (1969) 1 All NLR 67 where the court discussed domicile requirements.

Cohabitation

Cohabitation refers to the couple living together. Issues arise when cohabitation has ceased, which may be relevant to grounds for separation or dissolution.

Children

The welfare of children is paramount in family law proceedings. Petitions involving children must address custody, maintenance, and welfare arrangements. See the Child Rights Act 2003.

Previous Proceedings

The petitioner must disclose any previous matrimonial proceedings involving the same marriage. This ensures that the court is aware of any prior judicial decisions.

Condonation

Condonation refers to forgiving a matrimonial offense (e.g., adultery). If a petitioner has condoned the respondent’s misconduct, it can affect the outcome of the case. See the case of Nanna v. Nanna where condonation was discussed in terms of its impact on dissolution proceedings.

Connivance

Connivance involves the petitioner knowingly allowing the respondent to commit a matrimonial offense. This can bar the petitioner from obtaining relief.

Collusion

Collusion refers to an agreement between the parties to deceive the court. If proven, it can result in the dismissal of the petition. See the case of Ibeawuchi v. Ibeawuchi where the court addressed issues of collusion in matrimonial causes.

UNIT 18 - DISSOLUTION OF CUSTOMARY MARRIAGE

TOPIC OF THE DAY

- DISSOLUTION OF CUSTOMARY LAW MARRIAGES IN NIGERIA

- GROUNDS FOR DISSOLUTION

- PROCEDURES FOR DISSOLUTION

- LEGAL RECOGNITION AND COURT INVOLVEMENT

Dissolution of Customary Law Marriages in Nigeria

Customary law marriages in Nigeria are regulated by the customs and traditions of the various ethnic groups within the country. The process of dissolving these marriages varies across different cultures but generally involves both customary practices and statutory provisions. See the Matrimonial Causes Act 1970, Section 69 which provides that customary marriages can also be dissolved by a court decree if it’s found that customary practices have been complied with and the Evidence Act, Section 14(2) which recognizes the application of customary law where it can be proved as being in operation within a particular community.

Grounds for Dissolution

Customary law marriages can be dissolved based on several grounds, which might include but are not limited to:

1.Adultery: This means engaging in an extramarital affair is a common ground for dissolution.

2.Desertion: This means one spouse abandoning the other without reasonable cause.

3.Cruelty: This means physical or emotional abuse by one spouse towards the other.

4.Impotence: This means the inability to consummate the marriage.

5.Witchcraft or juju: This is the accusations of engaging in harmful traditional practices.

6.Mutual Consent: this means both parties agreeing to end the marriage.

Procedures for Dissolution

The process for dissolving a customary law marriage typically involves the following steps:

1.Family or Elders’ Intervention: Initially, this is where the families or elders of the couple often try to mediate and reconcile the differences. If reconciliation fails, the matter proceeds to the dissolution stage.

2.Return of Bride Price: A significant aspect of dissolving a customary marriage is the return of the bride price or dowry. This is where the husband's family usually requests this from the wife’s family as a formal dissolution of the union.

3.Community or Court Involvement: Depending on the customs, this is where the dissolution may be formalized in a community meeting or through a customary court.

Legal Recognition and Court Involvement

While customary marriages are primarily governed by traditional practices, statutory laws also recognize and sometimes regulate these marriages. The Nigerian courts have jurisdiction to adjudicate matters concerning the dissolution of customary marriages under certain conditions. See the case of Okpanum v. Okpanum (1972) 2 ECSLR 561where the court highlighted the necessity of returning the bride price for the dissolution of a customary marriage. The court emphasized that the marriage remains valid until the bride price is refunded and the case of Suberu v. Suberu (1957) SCNLR 45 where the Supreme Court dealt with issues of cruelty and how it can be grounds for the dissolution of a customary marriage. The court outlined that persistent cruelty or inhuman treatment justified dissolution.

UNIT 17 - GROUNDS FOR DIVORCE

TOPIC OF THE DAY

- WILLFUL AND PERSISTENT REFUSAL TO CONSUMATE THE MARRIAGE

- ADULTERY AND INTOLERABILITY

- PROOF OF ADULTERY

- NATURE OF EVIDENCE

- THE BIRTH OF A CHILD AND VENERAL DISEASE

- COHABITATION

- CONFESSION AND ADMISSION

- RESPONDENT GRAVE AND UNBEARABLE CONDUCT

- FREQUENT CONVICTION AND LEAVING THE SPOUSE WITHOUT SUPPORT

- IMPRISONMENT

- ATTEMPTED MURDER AND ASSAULT

- HABITUAL AND WOEFUL FAILURE TO SUPPORT

- INSANITY

- DESERTION

- DEFACTO SEPARATION AND ANIMUS DESERENDI

- LACK OF JUST CAUSE

- SEPARATION AND RESPONDENTS CONSENT TO DISSOLUTION

- LIVING APART FOR TWO YEARS

Willful and Persistent Refusal to Consummate the Marriage

Under Section 15(2)(a) of the Matrimonial Causes Act, a marriage can be dissolved if the respondent has willfully and persistently refused to consummate the marriage. See the case of Anyaegbunam v. Anyaegbunam (1973) 3 ECSLR 124, where the court held that the refusal to consummate must be deliberate and persistent over time.

Adultery and Intolerability

See section 15(2)(b) which states that adultery coupled with intolerability is a valid ground for dissolution even though it requires evidence such as a confession, circumstantial evidence, or eyewitness testimony. See the case of Akinbuwa v. Akinbuwa (1967) NMLR 163, where the court emphasized that the petitioner must find it intolerable to live with the respondent after the act of adultery and the case of Williams v. Williams (1964) LLR 337 where the court defines intolerability as the petitioner finding it impossible to continue cohabitation.

Nature of Evidence for Adultery

The nature of evidence needs to be direct evidence (e.g., confession) or indirect evidence (e.g., suspicious behavior, opportunity to commit adultery). See the case of Karimu v. Karimu (1984) HCNLR 412 where the court highlighted that indirect evidence can be sufficient if it points to a high probability of adultery.

The Birth of a Child and Venereal Disease

See section 15(2)(d) which covers situations where the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them, including infidelity resulting in childbirth or transmission of a venereal disease. See the case of Abudu v. Abudu (1976) 9-10 SC 296 where the court ruled that a venereal disease contracted during marriage can be grounds for dissolution if proven to be contracted through adultery.

Cohabitation

This is the act of living together as husband and wife. See the case of Nwankwo v. Nwankwo (2013) LPELR-21896(CA) where the court affirmed that evidence of ceasing cohabitation can support claims of desertion or intolerability.

Confession and Admission

Confessions and admissions by the respondent can be used as evidence to support claims of adultery or other grounds for dissolution. See the case of Oke v. Oke (1972) 2 ECSLR 199 where the court accepted the respondent's admission of adultery as sufficient proof.

Respondent's Grave and Unbearable Conduct

See section 15(2)(e) which considers any grave and unbearable conduct by the respondent as a valid ground for divorce. See the case of Olugbodi v. Olugbodi (1984) HCNLR 1 where the court detailed what constitutes grave and unbearable conduct, including physical and emotional abuse.

Frequent Conviction and Leaving the Spouse Without Support

See section 15(2)(f) which includes frequent conviction and failure to provide financial support. See the case of Adebayo v. Adebayo (2007) 8 NWLR (Pt. 1037) 69 where the court dissolved the marriage due to the respondent's habitual criminal behavior and neglect.

Imprisonment

Imprisonment of the respondent can be a valid ground for divorce if it causes intolerability or desertion. See the case of Ajayi v. Ajayi (1964) WNLR 157 where prolonged imprisonment led to a successful petition for divorce.

Attempted Murder and Assault

Physical violence, including attempted murder or assault, is a valid ground for divorce under Section 15(2)(e). See the case of Ogunowo v. Ogunowo (1995) 1 NWLR (Pt. 359) 697 where the court upheld that evidence of assault is sufficient for the dissolution of marriage.

Habitual and Woeful Failure to Support

Failure to provide financial support to the spouse is covered under Section 15(2)(c) and is also a valid ground for divorce. See the case of Eze v. Eze (2010) LPELR-4345(CA) where the court dissolved the marriage due to the respondent’s failure to fulfill financial obligations.

Insanity

See section 15(2)(d) which includes insanity as a valid ground if it results in intolerable living conditions. See the case of Dada v. Dada (1969) 1 All NLR 353 where the court considered prolonged and severe mental illness as grounds for dissolution.

Desertion

The intentional abandonment of one spouse by the other for a continuous period of at least one year can also be a valid ground for divorce. See the case of Akinbuwa v. Akinbuwa (1967) NMLR 163 where the court stressed that desertion must be continuous and without consent.

De Facto Separation and Animus Deserendi

De Facto Separation is the physical separation without legal proceedings while Animus Deserendi is the intention to desert permanently. See the case of Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41 where the court confirmed that the petitioner must prove both physical separation and intent to desert.

Lack of Just Cause

Desertion without just cause is a ground for dissolution under Section 15(2)(e) and can be a ground for divorce. See the case of Ekerebe v. Ekerebe (1999) 3 NWLR (Pt. 596) 514 where the respondent's desertion was found to lack justifiable cause.

Separation and Respondent's Consent to Dissolution

Mutual consent to divorce after living apart for a continuous period of two years is covered under Section 15(2)(e) and divorce can be granted. See the case of Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 where the court accepted mutual consent and continuous separation as sufficient grounds.

Living Apart for Two Years

See section 15(2)(e) which includes living apart for two years as grounds for dissolution if the respondent consents. See the case of Agbede v. Agbede (1967) LLR 51 where the court granted dissolution after two years of separation and mutual consent.

UNIT 16 - DISSOLUTION OF STATUTORY MARRIAGE

TOPIC OF THE DAY

- JUDICIAL SEPARATION

- GROUNDS FOR JUDICIAL SEPARATION

- BARS AND DEFENSES TO PETITION

- EFFECT OF THE DECREE

- DIVORCE

- DISCHARGE OF DECREE ON RESUMPTION OF COHABILITATION

- PETITION FOR JUDICIAL SEPARATION

- DISSOLUTION OF MARRIAGE BY DEATH

Judicial Separation in Nigeria

Judicial separation is a legal process by which a married couple can formalize a separation while remaining legally married. This process allows couples to live apart without divorcing. Judicial separation can be sought for various reasons, including religious beliefs, personal convictions, or the hope of reconciliation.

Grounds for Judicial Separation

The grounds for judicial separation in Nigeria are similar to those for divorce as codified under sections 15 and 16 of the the Matrimonial Causes Act. They include:

1.Adultery - this is where one spouse engages in sexual relations with someone outside the marriage.

2.Unreasonable Behavior - this is where one spouse behaves in such a way that the other cannot reasonably be expected to live with them.

3.Desertion - this is where one spouse deserts the other for a continuous period of at least one year immediately preceding the presentation of the petition.

4.Separation for Two Years - this is where both spouses have lived apart for a continuous period of at least two years, and both consent to the separation.

5.Separation for Three Years - this is where both spouses have lived apart for a continuous period of at least three years, whether or not the other consents.

6.Failure to Comply with a Decree of Restitution of Conjugal Rights - this is where one spouse fails to comply with a decree of restitution of conjugal rights for a period of one year.

Bars and Defenses to Petition

Certain bars and defenses can prevent a decree of judicial separation:

1.Connivance - this is where the petitioner condoned or connived at the respondent's behavior.

2.Condonation - this is where the petitioner forgave the respondent's behavior, and they resumed cohabitation.

3.Collusion - this is where both parties conspired to fabricate or exaggerate the grounds for separation.

5.Delay - this talks about when an unreasonable delay in bringing the petition can bar the separation. See the case of Williams v Williams (1998) 3 NWLR (Pt. 545) 748, where the court emphasized the importance of proving grounds without collusion or condonation.

Effect of the Decree

A decree of judicial separation has several effects:

1.Marital Status - this is where the marriage is not dissolved and the parties are still legally married but are allowed to live separately.

2.Property Rights - this is where the property rights of the parties remain unaffected.

3.Inheritance Rights - this is where the inheritance rights remain intact unless a will specifies otherwise.

4.Maintenance - this is where the court can make orders for maintenance similar to those in divorce cases.

Divorce

Divorce is the legal dissolution of a marriage by a court. Grounds for divorce in Nigeria are similar to those for judicial separation and are outlined in Sections 15 and 16 of the Matrimonial Causes Act.

Discharge of Decree on Resumption of Cohabitation

If a couple resumes cohabitation after a decree of judicial separation, the decree can be discharged by the following:

1.Application to Court - this is where either party can apply to the court for the discharge of the decree.

2.Evidence of Resumption - this is where the couple must provide evidence that they have resumed cohabitation and intend to live together permanently. See the case of Okafor v Okafor (2012) LPELR-19738(CA) where the court discusses the discharge of a decree upon resumption of cohabitation.

Petition for Judicial Separation

To petition for judicial separation, a spouse must file a petition at the High Court of their domicile. The petition should include:

1.Particulars of Marriage - this will contain the Date, place of marriage, and other relevant details.

2.Grounds for Separation - this will contain clear grounds as per the Matrimonial Causes Act.

3.Details of Children - Information on any children from the marriage would also be made known.

4.Prayer for Relief - Specific reliefs sought, such as maintenance or custody will be mentioned here.

Dissolution of Marriage by Death

Marriage can also be dissolved by the death of either spouse. See section 36 of the Matrimonial Causes Act. Upon the death of a spouse, the following would happen;

1.Termination of Marriage - The marriage will be automatically dissolved.

2.Inheritance Rights - The surviving spouse may have inheritance rights under the Wills Law and Administration of Estates Law.