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Law & Family

AN OVERVIEW OF FAMILY LAW IN NIGERIA

This work will cover key issues like: jurisdiction and, pre- and post-nuptial agreements, divorce, nullity of marriages, judicial separation and custody of children.

JURISDICTION AND CONFLICT OF LAW

Nigeria as a federation has 36 states and the Federal Capital Territory, Abuja. The breakdown of statutory marriage and other matters incidental to it are under the exclusive list of the Nigerian Constitution as amended in 2010. This therefore means that the National Assembly makes the laws regulating matrimonial causes.

The law regulating and governing marriages, marital breakdown and welfare of children in Nigeria is the Matrimonial Causes Act enacted in 1970. Again, in 1983, the Matrimonial Causes Rules were made , setting out the procedure for instituting actions for the dissolution of marriage and custody and maintenance matters incidental to dissolution of marriage.

Pursuant to the United Nations Convention on the Rights of the Child, Nigeria enacted in 2003, the Child’s Rights Act which has been adopted by 24 states including Lagos, Enugu and Rivers states. The law sets out provisions on the welfare and adoption of children. Lagos State enacted the Family law Rules in 2012 which have greatly simplified procedures on adoption, custody, guardianship and welfare of children in Lagos State.
Others laws include:
The Maintenance Orders Act
The Married Women’s Property Act 1882
The Law against Domestic Violence in Lagos State 2007
Received English Law
There are no separate family courts. The high court of the states and the Federal Capital Territory has jurisdiction to entertain matrimonial causes. It should however be noted that where an order of maintenance is ordered by the High Court, it can be enforced by a court of summary jurisdiction in a summary manner. See Section 114(1) of the Matrimonial Causes Act. Lagos State has its own family court to deal with matters of guardianship, custody and adoption but not related to matrimonial causes.

The requirement for courts to have jurisdiction to entertain divorce proceedings and relief attached thereto is “domicile” in Nigeria. Thus, a person domiciled in any state of Nigeria is deemed domiciled in Nigeria and can bring a petition for divorce in the High Court of any state in Nigeria whether or not he is domiciled in that state. The rule of forum convenience empowers the court to transfer matrimonial cases filed in a state High Court to any other state, but in the interest of justice.
In respect of joint property of the parties to the divorce proceedings, the rule of domicile also applies and the court where the divorce matter was instituted has jurisdiction. However, it is advisable to institute such matter or proceedings where the said property held jointly is situated. This will eliminate the need to register the judgment in the state where the property is situated before enforcement.

With respect to children, the court with jurisdiction over divorce proceedings has same over custody and child maintenance. This is because such jurisdiction is based on the main matrimonial cause. Thus, general rights of the child for instance, adoption, custody, guardianship and maintenance are not based on matrimonial causes and as such, domicile is not a requirement. Mere residence in the state that has adopted the Child’s Rights Act will suffice.

The terms “domicile” and “residence” are often used synonymously, however, they are different. Where domicile is the place where a person is physically present and to which that person intends to return and remain as a permanent abode, residence is the place where a person actually lives. Therefore, it means that residence requires bodily of physical presence as an inhabitant in a place while domicile requires bodily or physical presence and an intention to make the place a permanent abode. In Nigeria, the domicile of the husband determines the jurisdiction of the court but this is subject to the provision of Section 7 of the Matrimonial Causes Act which makes special provisions on the wife’s domicile thus:
In the case of a deserted wife domiciled in Nigeria either before her marriage or immediately before the desertion.
A wife, resident in Nigeria for at least three years immediately preceding at the date of bringing proceedings.

PRE- AND POST-NUPTIAL AGREEMENTS

Pre- and Post-Nuptial agreements are not common in Nigeria, thus, there is no reported Nigerian case law on them. The Court of Appeal has by implication, pronounced on the validity of such agreements in Oghoyone V Oghoyone where it held that the trial court was right in holding that the respondent had a joint interest in a property belonging to the parties because it was not referred to in their pre-nuptial agreement. Also, Section 72(2) of the Matrimonial Causes Act recognizes the rights of parties to execute such agreements but the validity or extent to which the agreement will be binding is at the discretion of the court.

DIVORCE
Divorce is the legal dissolution of marriage by a court or other competent body. In Nigeria, leave of court is required to petition for dissolution within two years of marriage except where the petition is predicated on grounds of lack of consummation, adultery, rape, sodomy and bestiality; and leave will not be granted unless the party seeking leave has suffered exceptional hardship or depravity. The court also considers the interest of the children of the marriage and possibility of settlement in determining the application for leave.  There is only one ground for divorce in Nigeria : that the marriage has broken down irretrievably. Therefore, there are facts and situations which establissh that a marriage has broken down irretrievably and they are provided in Sections 15 and 16 of the Matrimonial Causes Act. A petitioner must satisfy one or more of these facts in court. These facts are:
Lack of consummation of the marriage
Adultery and the fact that the petitioner finds it intolerable to live with the respondent.
Desertion for a continuous period of at least one year immediately preceding the filing of the petition.
The other party to the marriage has, for at least one year, failed to comply with a decree of restitution of conjugal rights.
The other party to the marriage has been absent from the petitioner for such time and in such circumstances to provide reasonable grounds for presuming that he or she is dead.
The facts above are usually known as the fault-based dissolution of marriage in that the petitioner must allege fault on the part of the respondent. There are however non-fault based dissolution of marriage where the petitioner need not allege any fault on the part of the respondent in order to secure dissolution of marriage. these facts are:
The parties have lived apart for a continuous period of at least two years immediately preceding the filing of the petition, and the respondent does not object to the dissolution of marriage. note that this fact is conjunctive that is, both facts in one must be established.
The parties have lived apart for a continuous period of at least three years immediately preceding the filing of the petition.
A petition for dissolution of marriage will not succeed if the petitioner has condoned any of the above grounds or facts that must be proved.

NULLITY
Nullity simply put means invalid; the state of nothingness. Nullity of marriage can be of a voidable marriage or of a void marriage. Section 5 of the Matrimonial Causes Act provides that marriage is voidable where:
Either party to the marriage is incapable of consummating the marriage.
Either party is: – of unsound mind; mentally defective; or subject to recurrent attacks of insanity or epilepsy.
Either party is suffering from a venereal disease in a communicable form.
The wife is pregnant by a person other than the husband.
The petition for nullity cannot be granted at the instance of the party suffering the incapacity unless the party was unaware of the incapacity at the time of the marriage. Again, with respect to the 2nd, 3rd and 4th points above, a decree of nullity will not be granted unless the following is established:
Ignorance of the fact constituting the ground on the part of the petitioner at the time of the marriage.
Petition was filed not later than 12months after the date of marriage.
Marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the fact constituting the ground.
A decree of nullity of a void marriage will be made in any of the following instances:
At the time of the marriage, either of the parties is lawfully married to another person.
The parties are within the prohibited degrees of consanguinity and affinity.
The marriage is not valid under the law of the place where the marriage takes place due to a failure to comply with the law of that place relating to the form of solemnization of marriages.
Lack of consent of either party, because: – it was obtained by duress or fraud; the party was mistaken as to identity of the other party or the nature of the ceremony; the party is mentally incapable of understanding the nature of the marriage contract.
Either party is not of marriage age (18years according to the Child Rights Act).

JUDICIAL SEPARATION
A decree of judicial separation only relieves the petitioner from the obligation to cohabit with the respondent while the decree subsists. It can be made in any of the circumstances stated with respect to grounds for dissolution of marriage. It does not affect the status, rights and obligations of the parties to the marriage. Thus, the marriage is still valid and subsisting and neither party can remarry while the decree subsists.

CUSTODY OF CHILDREN
A party seeking dissolution of marriage or other relief must state the number and age of the children and the arrangement for their maintenance, education and custody. The court can raise the issue of custody suo motu where the parties refuse to and cannot grant a decree absolute until arrangements for children are determined. The court may order joint custody or award custody to one of the parties with visitation rights for the other party and the primary consideration in awarding custody is the interest of the child. factors determining which of the parties should have custody include the emotional attachment to a particular parent, adequacy of facilities, wishes of the child, age and sex of the child, conduct of parties and so on. As a punitive measure, custody is not awarded to the offending party. However, where the mother does not suffer moral misconduct, infectious diseases, insanity, lack of reasonable means, or is not cruel to the children. Custody of children of tender age and female children is given to the mother. Custody may be sought under the Matrimonial Causes Act or the Child Rights Act. However, custody for unmarried couples is provided for only in the Child Rights Act. Where the Act has not been adopted, the customary or islamic law applies. It is at the discretion of the court to include visitation rights of the other party in a custody order and also order supervision. Child arrangement is valid till the child reaches 18 or 21 years depending on whether the order was made pursuant to Matrimonial Causes Act or Child Rights Act.


BY


C. C NWANKWO Esq