Marriage is assumed to be the coming together of two people with the understanding to spend the rest of their lives together. This coming together may be characterized with elaborate ceremonies or quiet celebrations as the parties choose.
I recall a court session, where the petitioner (wife) was placed under cross examination. She allegedly claimed her reason for walking out of her marriage of ten years (10) and her three children [ten years old (10), seven years old (7) and the last three years old (3)] respectively; subsequently placing them in care of the social welfare was because the respondent (Husband) was a womanizer and exhibited cruelty to her. She appeared hurt, broken, betrayed, revengeful and strong. She further requested for the sum of one million, five hundred thousand Naira (₦1.500, 000. 00) as maintenance and a brand-new car. We all sighed at the thought of the huge sum of money she demanded.
The respondents’ counsel on the other hand, defiant and bold, repeated that the divorce was a sham to extort the respondent and that he would do the needful to bring the petitioners plan to fail. The ongoing drama only availed me the reasoning as to what went wrong with the marriage and why parties couldn't settle their differences.
Following the impact of technological advancement and enlightenment, some key factors revolving around marriage appear to be forgotten or deliberately swept under the carpet. The question then is, what is marriage and what are its corresponding responsibilities alongside the law in Nigeria?
Marriage was defined in the decided case of Hyde v Hyde (1866) L.R. 1 P & D 130 as:
"A voluntary union for life of one man and one woman to the exclusion of all others".
This definition of marriage stemming from the case stated above connotes that:
1. Marriage is a union;
2. The union must be voluntary;
3. The union must be for life (as opposed to contract marriage) and
4. The union must be between one man and one woman (breach of it creates an offence called
Bigamy punishable with imprisonment for five years – See Section 46 & 47 of the Marriage Act and Section 370 of the Criminal Code).
Note however, that the recent trends and changes in the world offends this definition and distill it to appear outdated. Marriage in Nigeria is thus, guided by the provisions of the Matrimonial Cause Act 1914 and Marriage Causes Act 1970.
The provisions of the law unequivocally states that there are just two types of marriage known and recognized by law. These forms of marriage are known as;
1. Marriage under the Act – This is one contracted in accordance with the provisions of the Marriage Act 1914 and the Matrimonial Causes Act 1970. Marriage under the Act is also known as statutory marriage. This kind of marriage is recognized because upon marriage conducted either at the Court registry or in a licensed place, the couple is issued with a Marriage certificate and can invoke the powers of the law in case of any event.
2. Customary marriage, Islamic Marriage and other forms of marriage – This kind of marriage captures all other forms of marriage outside the Marriage under the Act. Note, that customary marriage differs by culture.
A close look into the issue of divorce and its antecedents, would reveal that the guiding provisions before obtaining a divorce are contained in the Matrimonial Cause Act discussed below.
Legal Tips On Marriage
1. Before the court grants divorce, the marriage must be at least two years old, or have the leave of court where it is less than two years old (often in exceptional situations like abuse, cruelty and more). See Section 30 (1) of the Matrimonial Causes Act.
2. Marriage can only be dissolved on the ground that it has broken down irretrievably (See Section 15 (1) of the Matrimonial Cause Act). The facts and circumstances showing that a marriage has broken down irretrievably are:
a. Willful and persistent refusal to consummate (sexual intercourse) the marriage – The party can bring an action against the spouse who refuses. See Baxter v Baxter (1948) A.C. 274, Owolabi V Olowobiyi (1965) 2 Al NLR 200.
b. Where a party commits adultery and the other party finds it intolerable to live with. Note that the adultery committed under alcoholic influence or while in a condition of insanity does not amount to adultery. See S v S (1962) Probate 133, where a person rapes the wife also, it does not amount to adultery. See Clarkson v Clarkson (1930) TLR 275 and Section 15 (2) (b) Matrimonial Causes Act.
c. Where a person exhibits conducts such as sodomy, drunkenness, bestiality commission of rape, intoxication by means of drug abuse and the other spouse finds it intolerable to bear. See Section 16 (1) (a) – (g) Matrimonial Causes Act.
d. Where the other party is absent from the life of the other for a period to conclude that the person is dead See Section 15 (2) (h) of the Matrimonial Causes Act and Parkinson v Parkinson (1939) 3 Al E.R. 108
e. Willful and voluntary abandonment by one spouse See Hopes v Hopes (1948) Al E.R. 920
f. Living apart continuously for a period of two years, three years, failure to comply with the court decree or order in respect of the marriage. See Section 15 (2) (e), (f), (g) Matrimonial Causes Act.
3. A proceeding for the dissolution of marriage may be brought in respect of a void and voidable marriage.
Elements of a voidable marriage are;
a. Incapacity to consummate the marriage by one of the party,
b. A party is of unsound mind,
c. A party is suffering from a vulnerable disease in a communicable form,
d. The wife is pregnant by another man
See Section 5 Matrimonial Causes Act.
Elements of a void marriage are;
a. Either of the party is lawfully married to another person at the time of the marriage,
b. The parties are not barred from marrying by reason of affinity or consanguinity,
c. The marriage did not take place under a valid place as required by the law,
d. Where consent of either party is obtained by fraud, duress or misrepresentation,
e. Where one of the party is not of marriageable age.
See Section 3 Matrimonial Causes Act.
4. There exist statutory bars to a decree of dissolution of marriage which includes:
Absolute Bars- the court will refuse making an order for dissolution where the petitioner is guilty of condonation, connivance and collusion. See Section 26 & 27 Matrimonial Causes Act
Discretionary Bars- the court can in its discretion refuse a dissolution for marriage where the party has condoned adultery, the petitioner has willfully deserted the respondent before the happening of such matters and the habits of the petitioner has contributed to facts that are used for the divorce. See Section 28 Matrimonial Causes Act.
5. The court upon a successful divorce proceeding grants a decree;
a. Decree Nisi – the first decree granted by the court, it temporally dissolves the marriage and lasts for a period of three months. See Section 27 Matrimonial Causes Act.
b. Decree Absolute – This order permanently dissolves the marriage and occurs after three months of the issuance of a Decree Nisi (where there are children under 16 years of age or a child above 16 years with exceptional circumstances- disabled children, the Decree Absolute suffice upon an order of the court). See Section 58 (1) Matrimonial Causes Act.
6. There should always be a proper arrangement by the party willing to have custody of the children of the marriage. (where the child is above 18 years of age, he decides whom to stay with). See Section 71 Matrimonial Causes Act.
7. The law provides for maintenance of the woman and her children to put them in a favourable position similar to what they were before the issue of divorce.
8. Settlement of properties of the marriage is based on the discretion of the court as the court decides who gets what. See Section 72 of Matrimonial Cause Act.
9. Only a person domiciled in Nigeria can institute a divorce proceeding under the Matrimonial Causes Act. See Section 2 (3) of the Matrimonial Causes Act.
10. Divorce is a cheap way out of a bad marriage. However, when your life is threatened in your marriage, please save yourself and consult a lawyer to seek alternative means out.
Marriage Is a sacred institution, it is a costly venture but very affordable for those willing to pay the price.