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A COMPARATIVE LEGAL ANALYSIS OF DISSOLUTION OF MARRIAGE UNDER CUSTOMARY AND STATUTORY LAWS

TABLE OF CONTENTS

COVER PAGE i

CERTIFICATION PAGE ..ii

ABSRACT	……	iii
TABLE OF CONTENTS		..iv
DEDICATION		x
ACKNOWLEDGEMENT..		…xi
TABLE OF CASES		..xiii
TABLE OF STATUTES		xv
LIST OF ABBREVIATIONCHAPTER 1 GENERATION INTRODUCTION		..xvi
1.0.0: INTRODUCTION		1
1.1.0: BACKGROUND TO STUDY		..4
1.2.0: OBJECTIVES OF STUDY		5
1.3.0: FOCUS OF STUDY		6
1.4.0: SCOPE OF STUDY		7
1.5.0: METHODOLOGY	.	.8
1.6.0: LITERATURE REVIEW		…8
1.7.0: DEFINITION OF TERMS		..9
1.8.0: CONCLUSIONCHAPTER 2 CONCEPT OF MARRIAGE		10
2.0.0: INTRODUCTION		12
2.1.0: DEFINTIONS OF MARRIAGE		14
2.2.0: TYPES OF MARRIAGE		15
2.2.1.0: MONOGAMOUS MARRIAGE		..16
2.2.2.0: POLYGAMOUS MARRIAGE		17
2.3.0: FORMALITIES FOR MARRIAGE		.19
2.3.1.0: NOTICE OF MARRIAGE		.19
2.3.2.0: REGISTRAR S CERTIFICATE		20
2.3.3.0: SPECIAL LICENCE		23
2.4.0: CAPACITY TO MARRIAGE		24

2.4.1.0: SINGLE STATUS .24

2.4.2.0: INFANCY .. 25

2.4.3.0: AGE 26

2.4.4.0: CONSENT ………………. ……..28

0: GROUNDS ON WHICH MARRIAGE MAY BE VOID ….30

2.5.1.0: EXISTING LAWFUL MARRIAGE .30

2.5.2.0: PROHIBITED DEGREE OF AFFINITY OR

CONSANGUINITY……………………………………………………………….32

2.5.3.0: FORMAL INVALIDITY 33

0: GROUNDS ON WHICH MARRIAGE IS VOIDABLE 34

2.6.1.0: INCAPACITY TO CONSUMMATE MARRIAGE …35

2.6.2.0:UNSOUNDNESS OF MIND, MENTAL DISORDER AND

EPILEPSY ………………………………………………………………………37

2.6.3.0: VENERAL DISEASE .38

2.7.0: MATRIMONIAL CAUSES JURISDICTION ..39

0: CONCLUSION …………………41 CHAPTER 3

DISSOLUTION OF MARRIAGE

0: INTRODUCTION 42
0: BARS TO A PETITION FOR DISSOLUTION OF

MARRIAGE…………………………………………………………………………43

3.1.1.0: CONDONATION3.1.2.0:	..44
CONNIVANCE	..46
3.1.3.0: COLLUSION	………47
3.1.4.0: PETITIONER S ADULTERY	48
3.1.5.0: PETITIONER S DESERTION	49

3.1.6.0: CONDUCT CONDUCING………………………………………………….49

3.2.0: DISSOLUTION OF STATUTORY MARRIAGE ….50

0: GROUNDS FOR DISSOLUTION OF STATUTORY

MARRIAGE ……. ……………………………………………………….51

3.3.1.0: WILFUL AND PERSISTENT REFUSAL TO CONSUMATE

MARRIAGE ………………………………………………………………………53

3.3.2.0: ADULTERY AND INTOLERABILITY 55

3.3.3.0: DESERTION	…..56
3.4.0: DISSOLUTION OF CUSTOMARY MARRIAGE	..59

0: GROUNDS FOR DISSOLUTION OF CUSTOMARY

MARRIAGE…………………………………………………………………………..60

3.5.1.0: GENERAL GROUNDS 61 3.5.2.0: STATUTORY GROUNDS …62

0:DIFFERENCES BETWEEN DISSOLUTION OF CUSTOMARY

MARRIAGE AND STATUTORY MARRIAGE	63
3.7.0: CONCLUSION	.65

CHAPTER 4

PROBLEMS AND PROSPECTS OF DISSOLUTION OF MARRIAGE

0: INTRODUCTION ……………66

4.1.0: GENERAL PROBLEMS OF DISSOLUTION OF MARRIAGE..67

4.1.1.0: FINANCIAL PROBLEM	68
4.1.2.0: PSYCHOLOGICAL PROBLEM	69
4.1.3.0: LACK OF PROPER MAINTENANCE	71
4.1.4.0: SETTLEMENT OF PROPERTY	…74
4.1.5.0: CUSTODY OF CHILDREN	77
4.3.0: CONCLUSIONCHAPTER 5 CONCLUSION AND RECOMMENDATION	…..80
5.0.0: CONCLUSION	82
5.1.0: RECOMMENDATION	..86

BIBLIOGRAPHY……………………………………………………………………………….91

ARTICLES ON INTERNET………………………………………………………………91

BOOKS………………………………………………………………………………………………92

TABLE OF CASES

UNITED KINGDOM

Hyde v Hyde (1886) LR 1 P&D 130, 133.

Spiers v Hunt (1908) 1 KB 720, 724.
Sidney v Sidney (1865) 4 SW & Tr 178, 34.
Wilson v Carnley (1908) 1 KB 729.
Re K (1963) Ch. 381.

NIGERIA

Adegoroye v Adegoroye (1996) 2 NMLR 712.
Adeleke v Yinka Suit No. M / 559 / 76 of 5 / 11 / 76 (unreported) Customary Court, Mapo, Ibadan.
Ebu v Obiasi Suit No. Misc / 3 / 69 of 16 / 5 / 69 (unreported) High Court, Agbor.
Ekrebe v Ekrebe (1999) 3 NWLR 514.
Hunponu-wusu v Hunponu-wusu (1969) 1 All NLR 62
Labinjo v Abake (1924) 5 NLR 33.
Lewis v Bankole (1909) 1 NLR 81, 101.
Martins v Martins (1931) 10 NLR 92.
Mason v mason (1979) 1 FNLR 149.
Nachimson v Nachimson (1930) Pr. 217.
Osamawoyin v Osamawoyin (1972) 10 SC, (1973) 1 ALL NLR 356.
Pam v Pam (1977) 11 CCHCJ 2589.
Sofela v Sofela (1976) 7 CCHCJ 1923.

TABLE OF STATUTES

NIGERIA

Criminal Code Act, 1916, Cap. 42.
Marriage Act 1914, Cap. 218 LFN 1990.
Matrimonial Causes Act 1970, Cap. 220 LFN 1990.
Matrimonial Causes Rules, 1983, S.I. No. 44 of 1983.

LIST OF ABBREVIATION

All NLR: All Nigeria Law Reports
CCHCJ: Judgements of the High Court of Lagos
CH: Chancery Division
FNLR: Federation of the Nigeria Law Report
KB: King s Bench
LR P&D: Law Reports, Probate and Divorce
MA: Marriage Act
MCA: Matrimonial Causes Act
NLR: Nigeria Law Report
NMLR: Nigeria Monthly Law Reports
NWLR: Nigeria weekly Law Reports
SC: Judgement of the Supreme Court
SW & TR: Swabey and Tristram s Reports

PROPOSAL

The decree of dissolution of marriage which is defined as the legal separation o f man and wife effected by the judgement or decree of a court, and either totally dissolving the marriage relation, or suspending its effect so far as it concerns the cohabitation of the parties. Dissolution of marriage seems to be on the increase these days, this is due to the fact that people rushed into ill-advised marriages and they decided to rush out of these marriages as soon as they discovered that their marriages are not what they expected. Therefore, no proceedings for dissolution may be instituted within two years of marriage without leave of court except where divorce proceedings are based on the facts of wilful and persistent refusal to consummate, adultery or the commission of rape, sodomy or bestiality. The subject matter of this research is to examine the nature and the conditions for dissolution of marriage, the likely problems that tend to follow and prospects. However, the study will further discuss the various types of marriage, validity of customary marriage and statutory marriage, capacity and formalities of marriage. In carrying out this research, emphasis will be laid on the various grounds for dissolving statutory marriage under the Matrimonial Causes Decree and the Marriage Act 1970 and customary marriage under the customary law. Also, the differences between dissolution of customary marriage and statutory marriage. But, it should be noted that, it is not the intention of the researcher to see that marriages which are ordained by God and which were hitherto, build on mutual trust and confidence between the parties and their families go asunder. But rather, to discourage spouses on dissolution of their marriages by providing a lasting solution to this, in order for us to have a better society and also to consider the pathetic effect of such on the society, children and family.

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

It is universally accepted that, marriage is the union between a man and a woman.^[1]Marriage is a universal institution, which is recognised and respected all over the world. Therefore, marriage is a contract whereby the parties enter into a legal relationship involving rights and obligations. As a social institution, marriage is governed by the social, religious and legal norms of the society. Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

The domestic relation laws of most states and particularly of the state of New York define marriage as a civil contract to which the consent of the parties is essential…

Unlike most European countries, two systems of marriage are recognised in

Nigeria- the monogamous and polygamous systems. These two systems differ fundamentally in character and incidents. Based on this, in every case concerning marriage, the lawyers has in the first instance to determine the type of marriage involved in order to enable him apply the appropriate law to determine the incidents.

A monogamous marriage in Nigeria is the same as in England. It is the marriage which Lord Penzance in Hyde v Hyde^[2] described as …..the voluntary union for life of one man and woman to the exclusion of all others .

A polygamous marriage may be defined as a voluntary union for life of one man with one or several wives. Its essential characteristic is the capacity of the man to take as many wives as he pleases. The character and the incidents of the system are governed by customary law.

This essay therefore, is set to examine the problems of dissolution of marriage and providing a solution to it. It is of paramount importance to shed light to this. Dissolution of marriage is the breaking up of a union.

Dissolution of marriage has its unpleasant impact, not only on the couple and their children but also on the society as a whole. Children of divorced marriage are usually the black sheep in a family set up and in the society as a whole. If, we should consider the resources the government expends in curtailing social problems in the society, then one should endeavour to proffer solution on one of the problems that actually precipitates social problems in our society.

However, dissolution of marriage has its great implication; it causes great emotional stress to the couples, their children and relations. It also has its great socio and economic problems to the nation. Most of these children develop psychological problems or even health problem. Such children may eventually become criminals due to lack of parental care as a result of the broken home syndrome.

Children are the future of a nation. They deserve proper care. They need proper education and attention. They need good health and emotional stability. They need to be taught patriotism, self discipline and good deed. Stability in the home can only ensure all the above. Where this is lacking, a child will be denied all the above and this will not augur well for the stability of our society and the future of our nation may be put in jeopardy. How will the future of a nation be where its future leaders are emotionally traumatised as a result of the dissolution of their parents marriage

1.1.0: BACKGROUND TO THE STUDY

Marriage has been defined as the civil status condition or relation of one man and one woman united in law, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

However, dissolution of marriage is the legal separation of man and wife, effected by judgement or decree of a court, and either totally dissolving the marriage relation or suspending its effect so far as it concerns the cohabitation of parties.^[3]

The study is concerned with the problems of dissolution of marriage and likely solutions. As it will be pointed out later, there are different types of marriage.

One is statutory while the other ones are customary and Islamic in nature and they differ fundamentally in character and incidents.

Dissolving or bringing to an end a statutory marriage ought not to give room to any controversy as such because the grounds for dissolution of man are well spelt out by the statute. It should be noted that at the time of dissolving a marriage, the legal system, and the parties, can use the occasion to survey the history of the marriage, to weigh and evaluate the contribution made to it by each spouse and to arrive at a final balance sheet. Instead of abrupt termination without legal process, which may cause some detriment to either of the party?

1.2.0: OBJECTIVES OF STUDY

The major objectives of this long essay are as follows:

To provide enlightenment to intending couples on how to ensure

stability in marriage.

To encourage good harmonious relationship not only among intending couples but also among married persons.
To redirect the attention of parents to the need to consider the well being of their children instead of seeking for divorce.
To draw attention to the social and economic problems children of divorced couples pose for a nation.
To let all and sundry be aware of the evil of dissolution of marriage and the need to avoid it at all cost.
To call attention to the need for a review and harmonisation of the various laws on marriages and dissolution in Nigeria.

1.3.0: FOCUS OF STUDY

The focus of this essay is on the problems of dissolution of marriage, how it affects not only the parties but also the children and the society at large. Thereafter, provide a lasting solution to it.

The researcher tends to focus on the causes of divorce, the problems it conceive or entails. The effect on the parties, which in some cases often result to emotional and psychological breakdown. This essay also focuses on how dissolution of marriage affects the children and the society.

1.4.0: SCOPE OF STUDY

This essay is based on dissolution of marriage: problems and prospects, particularly under the Act and customary law. We shall examine both the customary and statutory dissolution of marriage alongside with their grounds.

There is a considerable difference between dissolution of marriage celebrated under the customary law and that contracted under the Acts.

Dissolution of marriage is the legal separation of man and wife, effected by judgement or decree of a court, and either totally dissolving the marriage relation or suspending its effect so far as it concerns the cohabitation of parties.

Dissolution of marriage can only result from the order of a judge or magistrate. The order is sometimes called a decree of dissolution of marriage. The matter comes before a judge on the filing of a petition for dissolution, as it s called in most states and after the parties has agreed to terms for dividing their property.

However, it is pertinent to note that, our concentration is on the problems of dissolution of marriage and providing a lasting solution to these problems.

1.5.0: METHODOLOGY

The study will rely on primary and secondary sources of information. The primary sources will include the various statutory enactments directly and indirectly relating to trust in Nigeria.

The secondary sources will include text books, reports, articles and journal, and other relevant materials.

The work will be subjected to content analysis.

1.6.0: LITERATURE REVIEW

This study undertakes a fresh and contemporary study of dissolution of marriage: problems and prospects. This study will take a comprehensive approach on the subject.

According to Edvard Westermarck^[4] defined marriage as a more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of the offspring. He rejected his earlier definition, instead provisionally defining marriage as a relation of one or more men to one or more women that is recognised by custom or law.

Margaret C. Onokah^[5] submitted that, dissolution of marriage under customary law can be obtained extra judicially while a statutory marriage can be dissolved in a court having jurisdiction under the MCA 1970.

Grant Thomton^[6] in an annual study in the United Kingdom, estimates the main proximal causes of dissolution of marriage based on surveys of matrimonial lawyers and they are; extra-marital affairs, emotional or physical abuse, midlife crisis, addictions e.g. alcoholism and gambling, workaholism.

1.7.0: DEFINITION OF TERMS

Marriage marriage is a universal institution which is recognised and respected all over the world. As a social institution, marriage is founded on, and governed by the social and religious norms of

society.

Monogamous marriage in Nigeria, monogamous marriage is the

same as in England. It is the voluntary union for life of one man and one woman to the exclusion of all others.

Polygamous marriage it may be defined as a voluntary union for life of one man with one or several wives. Its essential

characteristic is the capacity of the man to take as many wives as he pleases.

Volenti non fit injuria no injury is done to a person who is willing. That is, to the consenting no injury is done.
Animus deserendi bringing cohabitation to an end.
Quoadhunc a person who seeks to know all latest new or gossip, that is implying someone constantly asking what is new.

1.8.0: CONCLUSION

It is of importance to note that in finding a solution to dissolution of marriage, the rate at which parent will intervene in their children s marriage should be reduced, the age of marriage should be reduced, the age of marriage should also be increased. The theme of this essay is therefore geared towards the real route of the problems of dissolution of marriage, its causes, effects and likely solution that can control it.

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