A critical appraisal of divorce under Nigerian law; issues and challenges

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A critical appraisal of divorce under Nigerian law; issues and challenges

ABSTRACT

The study examined A critical appraisal of divorce under Nigerian law; issues and challenges It focused on Nigeria legal and cultural system.

Efforts have been made in this case review to appraise the position of law in Nigeria in relation to the dissolution of marriage under the Customary Law which is often taken for granted simply because it is not a statutory marriage that needed to comply with any of the grounds stipulated

under the Matrimonial Causes Act. The law is clear that dissolution of marriage under the customary law equally requires the order of court to have it terminated and not by mere affidavit or personal verdict by the parties involved. Compliance with the provision of the law should be the yardstick for a proper dissolution of marriage.

The study focused on; examining the laws regulating dissolution of marriage. exploring the causes of divorce under the grounds for divorce in the Matrimonial Causes Act (MCA). determining the effects of divorce on the spouses, children and society at large. proposing modifications necessary in the laws regulating divorce and marriage. proposing mechanisms likely to curb the crippling effects of divorce on those affected.

The study revealed that; There are no provisions in the Matrimonial Causes Act considering obvious conflict situations. People should respect the institution of customary marriage and approach competent customary court when they find it expedient to dissolve such marriages. Divorce should not always be the best option for couples for the sake of their children. Family of the couple should always help the two different individuals foresee the future failure of the couple children once divorce is allowed there two adult couples.

The study concluded that divorce have a negative incidence and place in the Nigerian legal and cultural system and should not be seen as the best option.

The study suggested that: If serious marital discord arises the spouses should have the opportunity to attempt reconciliation with the assistance of a Marriage Reconciliatory Board. If reconciliation fails, it is evident that the marriage has broken down and the court should pronounce the divorce by decree. The establishment of specific matters as evidence or indication for the marriage. Basic arid elementary knowledge of marriages in Nigeria, attributes, essential ingredients, rights and duties must be included in the National Curriculum for both secondary and tertiary institutions. There must be other informal forms of educating the public on the marriages and consequences which will be directed towards other members of the public outside school setting. Public enlightenment campaigns, educational programmes carried out by government and non-governmental organisations.

CHAPTER ONE

BACKGROUND TO STUDY

The institution of marriage has been in practice from time immemorial in countries all over the world. The landmark case of [1]Hyde v Hyde gave the standard definition to marriage; as the [2]‘voluntary union of a man and woman to the exclusion of all others’.  Consequently, the sanctity of marriage is a well-accepted principle in the world community at large, its significance cannot be over emphasized because marriage is the root of the family and of society. This is why it is one of the few institutions universally and culturally recognized. The law in every country also recognizes marriage as a legal societal contract and as such recognizes duties, rights and obligations of both parties to one another in order to sustain the marriage. For example, child bearing and rearing is a right reserved solely for married couples because of the responsibilities involved.  Marriage, also termed ‘matrimony’ or ‘wedlock’ has not only a social foundation but also a religious one as documented in various books the bible and in the Quran. For instance; in [3]Genesis 2:24 ‘’Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh’’. This is why it has been regarded by all tribes and religion as sacrosanct and sacred in nature and Nigeria is no exception.  In Nigeria, marriage is celebrated under two ways; Customary (traditional/Islamic) or Statutory. There are distinct differences in both marriages, from its celebration, to accepted doctrines. For example; statutory marriages do not allow a man to marry more than more wife i.e. polygamous marriage but it is not prohibited in customary marriages. Consequently, the laws governing statutory marriage and its dissolution differ from customary laws governing divorce and as such this project will be concerned with the causes and the effects thereof of the dissolution of marriages under statutes.

Divorce is fundamentally explained as the legal dissolution of marriage by a competent court of law to the effect that there is a severance of the bond of the husband and wife. In spite of marriage being designed by God to last till eternity, intolerable situations may occur between spouses which lead to the irretrievable breakdown of the marriage. Nevertheless, as will be discussed in this project; the law in its regulation of dissolution of marriages has implemented a span for a petition of divorce to be brought to court so as to deter couples from rushing in and out of marriages carelessly.

Although the sociological and psychological effects of divorce vary from the type of marriages and their distinct features, there are still grave effects that the stain of divorce leaves on not only the spouses but their children and the society at large. The consequences that arise out of the divorce are brushed over because they are limited to only the effects it has on the spouses, however there also becomes the dislike for the institution of marriage by the youth in the society during the process of divorce in unfortunate circumstances.

The causes of divorce in a marriage vary from infidelity, violence, sodomy etc. to peculiar intolerable circumstances which cause a spouse unable to continue in the marriage. This is why Section 15 of the MCA has demarcated the grounds for a marriage to be dissolved. Dissolving or bringing to and end a statutory marriage ought not to give room to any controversy as it appears on the face of the law that the grounds for divorce are clearly spelt out by the statute. Yet, there still remains ambiguities in the terms used in the interpretation of a cause of the divorce and the processes to attaining damages on that ground. The subject matter of this research is to investigate the nature and conditions to disintegration of marriage, the aftermath of the process on the spouses, the children and society at large as well as possible solutions.  The dynamic nature of humans continue to pose various situations which can lead to the breakdown of a marriage, the scope of each ground is in dire need of reform in order to encompass varying causes which are more common today but can still be brought to a court under a ground for divorce in a statutory marriage.

STATEMENT OF PROBLEM

The rate of divorce in Nigeria continues to escalate over the years, thereby watering down the reverence and sanctity of marriage. The changing nature of humans as well as society continues to pose married couples with challenges in their day-to-day activities. The grounds of divorce stated in the MCA would do more good than bad to the process of dissolution of marriage if its terms are broadened. For example; in the world today, husbands, through peculiar actions have taken the word ‘cruelty’ to a more advanced meaning. Circumstances though not directly related to the marriage but having severe impact on the peaceful existence of the marriage need to be given more weight to suffice as a ground for divorce. Likewise other mechanisms which have proven helpful can be used to curb the rate of divorce; such as family dispute arbitration and made mandatory for marriages under two years so as to prolong marriages in Nigeria.

OBJECTIVES OF THE STUDY

  1. To examine the laws regulating dissolution of marriage.
  2. To explore the causes of divorce under the grounds for divorce in the Matrimonial Causes Act (MCA).
  3. To determine the effects of divorce on the spouses, children and society at large.
  4. To propose modifications necessary in the laws regulating divorce and marriage.
  5. To propose mechanisms likely to curb the crippling effects of divorce on those affected.

RESEARCH QUESTIONS

  1. What are the laws regulating dissolution of marriage?
  2. What are the causes for divorce under the grounds for divorce in the MCA?
  3. What are the effects of divorce on the spouses, children and society at large?
  4. What are the modifications necessary in the laws regulating dissolution of marriage?
  5. What mechanisms can be implemented to curb the effects of divorce on those affected?

   SIGNIFICANCE OF THE STUDY

The institution of marriage is a deeply rooted societal institution recognized and reverenced by all members of the society. Divorce in a family affects not only the emotional and psychological well-being of spouses but also on the children of the marriage, relatives and third parties who have interests in the marriage. The significance of this study is on the dissolution of statutory marriages in Nigeria as it examines the stipulated grounds and effects thereof. Hence, the potential part of the study is founded on the idea that the causes of divorce in a society envisaged under the grounds of divorce in the Matrimonial Causes Act need to be clearly analyzed and the scope of grounds broadened. The effects that divorce has on the society, children in the marriage, as well as the spouses will also be investigated so as to deter the rushing in and out of marriages.

RESEARCH METHODOLOGY

The approach to be used in this research is library/desk approach. This research involves making use of primary sources such as judicial decisions, statutes and information obtained from the internet; secondary sources written by various authors such as, textbooks, journals, articles and dictionaries.

DEFINITION OF OPERATIONAL WORDS

  • Marriage – Black’s Law Dictionary[4] defines marriage as the legal union of a couple as husband and wife. It the voluntary union of a man and a woman recognized by law as binding them to become husband and wife.
  • Divorce- This is the process of dissolving a marriage i.e. bringing the marriage to an end. Divorce or dissolution of marriage, according to Wikipedia[5] is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties involved (unlike annulment which declares the marriage null and void).
  • Monogamous marriage- is the union of one man and one woman to the exclusion of all others and this is the statutory adequacy of a marriage. Hyde v Hyde[6]
  • Statutory marriage- is marriage governed under the rules of statute as opposed to customary/traditional marriage which is governed by customs and norms of the society.
  • Matrimonial Causes Act- are the laws regulating marriage in Nigeria since 1970.

LIMITATION OF THE STUDY

This project will be confronted with some limitations ranging from difficulty in getting materials for a comprehensive research to limited time for elaborate research on the topic that combines a aspects of law since it is impossible for all data on a subject to be wholly acquired as well as the exploration on all its facets.



[1]Hyde .v. Hyde and Woodmansee (1866)

{L.R}. 1 P. &D. 130

[3]The Holy Bible (New King James Version).

[4] (2004) Eighth Edition, Thompson West.

[6] (1866) LR 1  P & D 130, 133

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