The crux and centre of gravity in family law appears to be revolved around the vexed concept of Divorce, or put it in another perspective, “the dissolution of marriage”. This concept sometimes tends to whittle away the doctrine of sanctity of marriage. It is therefore so complex, confusing, in fact distorting and indeed seen as an abhorrence, if not an anathema.
Parties involved are equally viewed with social stigma and disparage in the society not only today or now but from a period of immemorial antiquity. It poses many legal, financial and emotional challenges. It is seen as a failure in real sense.
Marriage is a universal institution, which is recognized and respected all over the world. As a social institution, marriage is founded on, and governed by the social and religious norms of society. Consequently, the sanctity of marriage is a well accepted principle in the world community. Marriage is therefore the root of the family and indeed the society.
Various types of marriage exist in the world but the one close to my heart in this piece is the type referred to as statutory marriage.
The English version of the Nigerian statutory marriage was defined by Lord Penzance in HYDE V. HYDE (1860) LR.I PD, 130 as “the voluntary union for life between one man and one woman to the exclusion of all others”.
The facts that it must be a “voluntary” Union and that only one man and one woman can conclude it, are abundantly confirmed in Nigerian Law (see section 3(1)(d) of the Matrimonial Causes Act and sections 11(1) (d) and 35 of the Marriage Act).
However, it is not certain to agree with His Lordship on whether it remains a union “for Life”. For instance, in modern times, couples conclude marriages for various short term objectives like, to obtain a particular nationality for residence purposes or to obtain an exit visa from a country in which one of the parties is normally resident or of which he or she is a citizen. Such short term marriages are nevertheless valid, even though the couple may go their separate ways as soon as their objective is achieved. Moreover, there is nothing to prevent two people from getting married because the woman is pregnant. After the legitimate birth of the child, they could then separate and subsequently obtain a divorce (see Bromley’s Family Law 7th Edition pg 18).
Divorce on its part has been defined as the legal dissolution of a marriage by a court (see Black’s Law Dictionary 7th Edition, Pg. 494).
The new Webster’s dictionary of the English Language also defined divorce as a legal dissolution of marriage (International Ed. Pg. 275).
The word ‘divorce’ has not found statutory definition in any of the Acts. However, sections 15 and 16 of the Matrimonial Causes Act provide for the dissolution of marriage especially the grounds for such dissolution.
But it is agreed that Divorce is tantamount to or a synonym of dissolution of marriage.
It is reiterated that the main hub of a marriage is bliss and happiness. Nevertheless, the ugly monster called divorce only comes in where the marriage has failed or has broken down irretrievably.
The divorce rate in Nigeria increased gradually but slowly between the 1940s and 1950s. But between 1966 to the 1980s the divorce rate doubled in the country. Today the rate of divorce has soared so high like an eagle. Divorce which has dearth of Nigeria cases before independence has eventually soared so rapidly.
Through out history, political, economical and religious factors have contributed to divorce rate. Whereas the single most important factor in determining whether a particular marriage will end in a divorce is the two parties involved, certain social factors and individual characteristics do seem to make divorce more or less likely.
People of Catholic or Jewish Faith have had a lower divorce rate than do protestants, although Catholics have seen an increase in their rate of divorce, which parallels that of the general population. Religious practices are believed by some to tie in with racial differences in divorce rates. Cultural factors may affect the entire divorce process. For instance, it has long been acceptable for a man to have concubines in the traditional Nigeria Culture. The story is the same in China. But wives in America wouldn’t put up with that.
Age at the time of the marriage is one of the greatest predictors of marriage. Yet this age stipulation is lacking in the various laws governing marriage in this country.
Today, marriage is generally viewed in the law as a civil contract, an emotional bond and a financial partnership. The religious or spiritual nature of the marriage vows continue to be crucial to many people.
We expect our marriages to produce happiness, to offer our companionship, sexual satisfaction and personal fulfillment.
Infact, both a realistic view of the multifaceted nature of the partnership, as well as high expectation for marriage prevails.
The grounds for divorce are therefore stipulated by Law and are essentially provided for under sections 15 and 16 of the Matrimonial Causes Act.
Before 1970, the Nigerian Law on divorce was based on the matrimonial offence theory. This arose from the fact that the Law on matrimonial causes in force in England from time to time was made applicable to Nigeria. Thus changes in English Law in this respect became part of Nigerian Law. In England, the matrimonial offence theory dates back to the old Ecclesiastical courts which originally had exclusive jurisdiction in the dissolution of marriages.
When in 1857 secular divorce was introduced, the offence theory continues to hold sway. By this theory, a marriage may only be dissolved when a spouse has committed a matrimonial offence like adultery, cruelty or desertion.
The exodus from the matrimonial offence theory in many parts of the common wealth began in 1920 when the New Zealand legislature experimented the notion of breakdown of marriage. This took more drastic effect in the Matrimonial Proceedings Act 1963. Australia followed with Matrimonial Causes Act, 1959 which based partly on the breakdown theory.
In England there were several reforms which are the bedrock of the Nigeria’s position today. Therefore, in 1970, the then military Government promulgated the Matrimonial Causes Act, to replace the English rules which where in operation up till then in Nigeria. The Act marked the First indigenous legislation in this area. The most crucial change effected by the Act was the introduction of the breakdown principle into the Nigerian Law of divorce. It also retained elements of the matrimonial offence theory.
Now, section 15 (I) of the Act provides that either party to a marriage may petition for divorce “upon the ground that the marriage has broken down irretrievably” consequently the section established a single ground for divorce irretrievable breakdown in place of several grounds which existed under the old law.
Again section 15(2) stipulates eight facts proof of which will enable the court to come to the conclusion that a breakdown of marriage has occurred.
Section 16 (I) of the Matrimonial Causes Act equally stipulates fourteen other facts, any of which if proved, would also constitute the facts in section 15 (2) (c) that is, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. These 14 extra facts include the commission of rape, sodomy, or bestiality by the respondent, habitual drunkenness or drug addiction for two years, frequent convictions for crime coupled with habitually leaving the petitioner or inflicting grievous bodily harm on her, refusal to comply with a maintenance order made in favour of the petitioner, and confinement in a mental institution for 5 years during the 6 years period immediately preceding the presentation of the petition.
TO BE CONTINUED …
Barr. Gideon Kpoobari Girigiri
08036784327
