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.

UNIT 15 - JURISDICTION IN CUSTOMARY LAW MARRIAGE

Jurisdiction in Customary Law Marriage in Nigeria

Jurisdiction in customary law marriage refers to the legal authority or power of a court to hear and decide matters related to customary marriages. Customary law marriages in Nigeria are governed by the customary laws of the ethnic group to which the parties belong. This jurisdiction is crucial in determining the legality, dissolution, and other related matters of such marriages. See section 20 of the Customary Courts Law of various states which empowers customary courts to handle issues related to marriage, divorce, and other matrimonial causes under customary law.

1. Definition and Recognition

Customary law marriages are those contracted in accordance with the customs and traditions of the ethnic groups in Nigeria. These marriages are recognized under Nigerian law, particularly under the Marriage Act and the Matrimonial Causes Act.

2. Jurisdiction of Customary Courts

Customary courts are vested with the jurisdiction to hear and determine matters related to customary law marriages. These courts operate at the state and local government levels and apply the specific customary laws of the ethnic groups within their jurisdiction.

3. Legal Requirements for Jurisdiction

For a customary court to have jurisdiction, certain conditions must be met:

a.The parties must belong to the ethnic group whose customary law is being applied.

b.The marriage must have been conducted according to the customary practices of that ethnic group.

c.The court must be within the territorial jurisdiction where the parties reside or where the marriage was contracted.

4. Relevant Cases

See the case of Oyewinle v. Oyewinle (1987) 2 NWLR (Pt. 56) 239 where the court held that a customary marriage is valid if conducted in accordance with the customs of the parties involved. It also emphasized the importance of jurisdiction, noting that only courts familiar with the relevant customs should adjudicate such matters.

See also the case of Osamwonyi v. Osamwonyi (2017) LPELR-41526(CA) where the Court of Appeal reiterated that customary courts have the exclusive jurisdiction to handle issues arising from customary marriages, including their dissolution. The court stressed that any matter related to customary marriage should be brought before the appropriate customary court.

5. Jurisdictional Challenges

Several challenges can arise regarding jurisdiction in customary law marriages:

a.Conflicting Customary Laws: In cases where parties belong to different ethnic groups, determining which customary law to apply can be complex.

b.Geographical Boundaries: Customary courts have territorial limits, and issues can arise when parties move to different jurisdictions.

c.Recognition of Customary Law: Not all customary practices are recognized under Nigerian law, particularly if they conflict with constitutional provisions or public policy.

6. Superior Courts and Customary Law

While customary courts primarily handle customary marriage issues, superior courts (High Courts) can exercise appellate jurisdiction. They review decisions made by customary courts to ensure they comply with principles of justice and the laws of Nigeria. See section 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides for the establishment of Customary Courts of Appeal in states, which handle appeals from customary courts and section 282 of the Constitution which outlines the jurisdiction of Customary Courts of Appeal, focusing on issues of customary law.

7. Dissolution of Customary Law Marriages

The dissolution of customary law marriages is also within the jurisdiction of customary courts. The grounds for dissolution and the procedures followed are dictated by the customary laws of the relevant ethnic group. See the case of Oladunni v. Oladunni (1990) 5 NWLR (Pt. 153) 48 where the court highlighted the process of dissolving a customary marriage. The court underscored that the dissolution must be in line with the customary laws of the parties and that customary courts have the appropriate jurisdiction to handle such matters.

UNIT 14 - JURISDICTION IN STATUTORY MARRIAGES

TOPIC OF THE DAY

- JURISDICTION IN MATRIMONIAL CAUSES MATTERS

- DOMICILE

- DOMICILE OF A MARRIED WOMAN

- DOMICILE OF CHOICE

- JURISDICTION BASED ON DOMICILE

- JURISDICTION BASED ON RESIDENCE

- LAW TO BE APPLIED

- RECONCILIATION

Jurisdiction in Matrimonial Matters

Jurisdiction refers to the authority given to a legal body like a court to administer justice within a defined field of responsibility. In matrimonial matters, this includes authority over issues such as divorce, maintenance, custody of children, and property settlement. In Nigeria, jurisdiction in matrimonial causes is primarily vested in the High Courts. See section 2(1) of the Matrimonial Causes Act (MCA) 1970 which states that subject to the provisions of this Act, a petition under this Act shall be presented to the High Court and the case of Cole v. Cole (1898) 1 NLR 15 where the court established that the High Court has jurisdiction over matrimonial causes in Nigeria.

Domicile

Domicile is a crucial concept in determining jurisdiction in matrimonial matters. It refers to the place where a person has their permanent home or principal establishment and to where they intend to return whenever they are absent. See the case of Udny v. Udny (1869) L.R. 1 Sc. & Div. 441 where the court outlines the principles of domicile of origin, domicile of choice, and domicile of dependence.

Types of Domicile

1.Domicile of Origin: The domicile a person acquires at birth, usually the domicile of their father.

2.Domicile of Choice: A domicile that a person can acquire by moving to another jurisdiction with the intention to reside there permanently.

3.Domicile of Dependence: The domicile of a person who is legally dependent on another, such as minors and married women (historically).

Domicile of a Married Woman

Historically, a married woman’s domicile was considered to be that of her husband. However, modern legal reforms have changed this to reflect gender equality, allowing married women to have an independent domicile. See section 7 of the Matrimonial Causes Act 1970 which allows a married woman to acquire an independent domicile and the case of Lewis v. Lewis (1921) 1 AC 694 where the court recognized that a married woman could acquire a domicile separate from her husband’s.

Domicile of Choice

A person can acquire a domicile of choice by residing in a jurisdiction with the intention of making it their permanent home. This requires both physical presence and the intention to reside permanently. See the case of Bell v. Kennedy (1868) L.R. 1 Sc. & Div. 307 where the court establishes the requirement of residence and intention for acquiring a domicile of choice.

Jurisdiction Based on Domicile

In Nigeria, jurisdiction for matrimonial causes is primarily based on the domicile of the parties. The High Court has jurisdiction if either party to the marriage is domiciled in Nigeria at the time of the petition. See section 2(3) of the Matrimonial Causes Act 1970 which states that the court has jurisdiction if either of the parties is domiciled in Nigeria.

Jurisdiction Based on Residence

In certain cases, jurisdiction can also be based on the residence of the parties. The High Court may have jurisdiction if the parties have resided in Nigeria for a specified period before the petition is filed. See section 2(4) of the Matrimonial Causes Act 1970 which states that the court has jurisdiction if the parties have been ordinarily resident in Nigeria for at least three years immediately preceding the presentation of the petition.

Law to be Applied

The law applicable in matrimonial causes in Nigeria is the Matrimonial Causes Act 1970. This Act governs the procedure and substantive issues related to matrimonial matters, including divorce, maintenance, and custody and also provides the legal framework for matrimonial causes in Nigeria.

Reconciliation

Before proceeding with divorce or judicial separation, Nigerian law encourages reconciliation between the parties. The court may adjourn proceedings to give the parties an opportunity to reconcile. See section 11 of the Matrimonial Causes Act 1970 which empowers the court to adjourn proceedings to enable reconciliation efforts and the case of Ogunbiyi v. Ogunbiyi (1980) 3 CCHCJ 1137 where the court emphasized the importance of reconciliation and granted an adjournment to allow the parties to attempt reconciliation.

UNIT 13 - LEGAL EFFECTS OF MARRIAGE

TOPIC OF THE DAY

- INVARIABLE CONSEQUENCES OF MARRIAGE

- VARIABLE CONSEQUENCES OF MARRIAGE

- CONSORTIUM

- SEXUAL INTERCOURSE

- ENTICEMENT

- HARBOURING

- LOSS OF RIGHT TO CONSORTIUM

- CONTRACTUAL RELATIONS BETWEEN SPOUSES

- WIFES AUTHORITY TO PLEDGE HUSBANDS CREDIT

- COHABITATION

- TORTS

- HUSBAND IN CRIMINAL LAW

- WIFE IN CRIMINAL LAW

- MUTUAL DEFENCE

- DEFENCE OF PROPERTY

- CITIZENSHIP

- MARRIAGE CELEBRATED ABROAD

- CUSTOMARY LAW MARRIAGE

Invariable Consequences of Marriage

Invariable consequences of marriage refer to the legal effects and obligations that arise automatically upon the formation of a valid marriage, regardless of the specific terms or conditions agreed upon by the spouses. See the Matrimonial Causes Act, the Marriage Act, and the Evidence Act. See the case of Lawal v Younan (1961) where the court established the presumption of legitimacy of children born within a marriage and the case of Okonkwo v Okonkwo (1964) where the court addressed the issue of succession rights of a surviving spouse.

Examples includes;

1.Mutual Rights and Obligations: this is where both spouses have the right to consortium, which includes companionship, assistance, cohabitation, and sexual relations.

2.Legitimacy of Children: this is where children born within a marriage are presumed legitimate.

3.Succession Rights: this is where spouses have rights to inherit from each other under the Administration of Estates Law.

Variable Consequences of Marriage

Variable consequences of marriage depend on the specific circumstances and agreements between the spouses, and may vary from one marriage to another. See the case of Enekwe v Enekwe (1964) where the court highlighted the variability in property ownership arrangements and the case of Ekwueme v Ekwueme (1967) where the court discussed the variability of spousal maintenance obligations.

Examples includes;

1.Property Ownership: this is where property is owned and managed can vary based on pre-nuptial agreements or community property laws.

2.Maintenance and Support: This is where the extent and nature of spousal support can vary based on the financial status and needs of each spouse.

Consortium

Consortium refers to the mutual rights of spouses to each other’s company, cooperation, affection, and services. See section 34 of the Matrimonial Causes Act which provides for the rights to consortium between married couples and the case of Ogundimu v Ogundimu (1965) where the court upheld the right to consortium, emphasizing companionship and assistance.

Sexual Intercourse

Sexual intercourse is considered a fundamental component of marital consortium, and the refusal to engage in it can be grounds for matrimonial relief. See the case of Lazarus v Lazarus (1967) where the court addressed the refusal of sexual intercourse as a ground for divorce.

Enticement

Enticement occurs when a third party persuades or induces a spouse to leave the other, interfering with the marital relationship. It is recognized under common law and applicable in Nigeria. See the case of Jones v Williams (1956) where the court recognized the tort of enticement and awarded damages.

Harbouring

Harbouring refers to providing shelter or refuge to a spouse who has left the marital home without just cause. The common law recognizes the tort of harbouring. See the case of Oloja v Oloja (1955) where the court addressed the issue of harbouring a spouse without just cause.

Loss of Right to Consortium

A spouse may lose the right to consortium through actions such as adultery, desertion, or other significant marital misconduct. See the case of Ademola v Ademola (1963) where the court addressed the loss of consortium rights due to adultery.

Contractual Relations Between Spouses

Spouses can enter into contracts with each other, although certain limitations apply due to the fiduciary nature of the marital relationship. See the case of Onwudinjo v Onwudinjo (1970) where the court upheld the validity of a contract between spouses.

Wife's Authority to Pledge Husband's Credit

A wife may have the authority to pledge her husband’s credit for necessaries, depending on the circumstances and local customs. See the case of Odofin v Odofin (1958) where the court examined the wife’s authority to pledge her husband's credit for household expenses.

Cohabitation

Cohabitation refers to the living together of spouses in a shared household. The Matrimonial Causes Act addresses the rights and obligations related to cohabitation. See the case of Okwueze v Okwueze (1966) where the court emphasized the importance of cohabitation in marriage.

Torts

Spouses can sue each other in tort, although certain limitations apply. See the case of Esan v Esan (1962) where the court recognized the right of spouses to bring tort claims against each other.

Husband in Criminal Law

A husband can be held criminally liable for acts such as domestic violence, rape, and other criminal offenses. See the case of State v Adewunmi (1972) where the court addressed the criminal liability of a husband for domestic violence.

Wife in Criminal Law

A wife can also be held criminally liable for offenses, including those committed against her husband. See the case of State v Makanjuola (1974) where the court examined the criminal liability of a wife for an offense against her husband.

Mutual Defence

Spouses have the right to defend each other against unlawful attacks. Where the Criminal Code Act provides for the right to self-defense, applicable to mutual defense. See the case of Akintoye v State (1971) where the court upheld the right of a spouse to defend the other.

Defence of Property

Spouses have the right to defend their marital property against unlawful intrusion or theft. See the case of Nwosu v State (1973) where the court recognized the right to defend marital property.

Citizenship

Marriage to a Nigerian citizen can affect the citizenship status of a foreign spouse. See section 26 of the Nigerian Constitution which addresses citizenship through marriage and the case of Adeleke v Federal Republic of Nigeria (1965) where the court examined the citizenship rights of a foreign spouse married to a Nigerian.

Marriage Celebrated Abroad

Marriages celebrated abroad can be recognized in Nigeria if they meet certain legal requirements. See section 49 of the Marriage Act which provides for the recognition of foreign marriages and the case of Bamidele v Bamidele (1970) where the court addressed the recognition of a marriage celebrated abroad.

Customary Law Marriage

Customary law marriage is a marriage conducted according to the customs and traditions of the ethnic group to which the parties belong. The Marriage Act and Matrimonial Causes Act provides for the recognition and regulation of customary law marriages. See the case of Obiechina v Obiechina (1973) where the court upheld the validity of a customary law marriage.