ABSTRACT
Divorce which is the formal voluntary ending of a marriage by granting of a decree of dissolution of that marriage on the petition of either party thereto, in a manner which allows the party to remarry.
Divorce 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 grounds of divorce in Nigeria and U.s with a view of identifying the likely problems that tend to follow such dissolution.
It is evident from this study that there is only one ground for divorce in Nigeria which is the irrevocable breakdown of marriages. To prove however that a marriage has broken down irretrievably, the petitioner has to establish any of the facts, or better grounds or sub-grounds as contained in section 15(2) (a-h) of the Matrimonial Causes Act, 1970.
However, in U.S fault and no-fault divorces requires that specific grounds be met. Some of the no-fault based grounds are irretrievable breakdown of the marriage, irreconcilable differences, incompatibility, or after a period of separation, depending on the state. Also, several grounds for fault divorce include in U.S include adultery, cruelty, abandonment, mental illness, and criminal conviction.
Despite all the grounds for divorce listed above, divorce remains for most adults a severely traumatic experience, as it has been discovered that the causes of divorce are people’s maturity, status, different educational background, different orientation and religion.
This essay recommends the total removal of paragraph (g) subsection (2) of section 15 of the Matrimonial Causes Act 1970 which talks about failure to comply with a decree of restitution of conjugal rights as it serves no useful purpose since there is no evidence of any petitioner having resorted to it towards bringing a marriage to an end. It also recommends the consideration of a fault divorce in U.S due to the time-consuming nature in the U.S jurisdiction, which could likely violate the parties’ privacy.
CHAPTER 1
GENERAL INTRODUCTION
1.0 INTRODUCTION
The Marriage act under the Nigerian law defined marriage as the union of one man and one woman to the exclusion of all others1. In other words, marriage is predicated on the mutual consent of a man and a woman to live together as husband and wide. Ordinarily, an ideal marriage will remain united, undivided, and unbroken.
Marriage is universally accepted to be an institution governed by the social and religious norms of the society. It is a union between a man and a woman2. It is apt to state that marriage as an institution has been in existence from time immemorial. It can be traced back to the creation of man and is considered to have spiritual, moral and social significance in the society. It is therefore revered as sacred and thus heavily guarded by various religions, traditions, social norms and laws alike3.
The increasing rate of divorce all over the world has called into question the continued validity of the above definition of marriage as a union for life. Also, the issue of same-sex marriage has been a front-burner in national discuss in different jurisdictions around the globe with the United States’ Supreme Court recently validating a same-sex marriage in the case of Obergefell v Hodges. In Nigeria, the sanctity of marriage cuts across all regions of the country regardless of culture and religion.
The consequential hardship and challenges existing in many marriages today violently push the edges of the enclosing envelope of survival of most marriages, leading to greater number of cases of separations or outright divorced4.
According to Ifemeje5, “A good divorce law was seen as one that is able to provide a way out of a dead relationship, and to enable the parties to enter into a new legal relationship, if they so desire.”
Divorce 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 society6.
However, divorce 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.
The parties to a marriage are proper parties to a petition for a matrimonial relief. But in certain cases like adultery, a third party may be joined to the proceedings as a “Co-Respondent (Matrimonial Causes Act, Section 32)8.” The Co-Respondent must be the one with whom the Respondent committed the adultery. The Court may award damages for adultery against the Co-Respondent (Matrimonial Causes Act, Section 31)9. The court shall however not award damages if the Petitioner has condoned the adultery; or where adultery is not a ground for a decree of dissolution of the marriage (Matrimonial Causes Act, Section 31), or where the adultery has been committed more than 3 years before the date of the petition (Matrimonial Causes Act, Section 31).
1.1. 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, divorce 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 parties11.
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 sheet12. Instead of abrupt termination without legal process, which may cause some detriment to either of the party?
The study is concerned with the comparative analysis of the grounds of divorce in Nigeria and U.S. The study will point out the grounds of divorce under the Nigerian law and United States law. Since there is no uniform divorce law in the United States, the study will focus on issues of divorce varying from State to State as there is no federal law on the subject.
1.2. STATEMENTS OF PROBLEMS
Marriage breakdown appears to be on the increase and it is becoming increasingly stressful on the part of the divorcees, their children and the society. The effect on the parties is intense as in some cases often result into emotional and psychological breakdown.
The essay will point out the grounds of divorce in both Nigeria and US jurisdictions and how it affects not only the parties but also the children and the society at large. Thereafter, provide a lasting solution to it. The essay will also focuses on the causes of divorce, the general problems it conceive or entails.
1.3 OBJECTIVES OF STUDY
The major objectives of this long essay are as follows:
a. To compare the grounds of divorce under the Nigeria and U.S laws
b. To examine fault and no fault matrimonial theory in both jurisdictions
c. To encourage good harmonious relationship not only among intending couples but also among married persons.
d. To redirect the attention of parents to the need to consider the well being of their children rather than seeking for divorce.
1.4 RESEARCH QUESTION
The following research questions will guide the essay
a. What is the grounds of divorce under the Nigeria and U.S laws?
b. What does fault and no fault matrimonial theory says in both jurisdictions?
c. Does good and harmonious relationship prevent divorce among intending couples and married persons?
d. How can parents be encourage to seek the well-being of their children rather than seeking for divorce?
1.5. SCOPE OF STUDY
This essay is based on grounds for divorce in Nigeria and U.S, particularly under the fault and no fault matrimonial theory. We shall examine grounds for divorce of statutory marriage and customary marriage under the Nigeria Law. In addition, the grounds for divorce under the matrimonial causes act of 1970: the amalgamation of the fault-based and no-fault based principles of divorce will be examined.
Furthermore, the essay will also focus on state divorce laws in U.S, fault-based divorce and no-fault divorce under the U.S laws.
However, it is pertinent to note that, our concentration is on the grounds of divorce in Nigeria and U.S, problems of divorce and providing a lasting solution to these problems.
1.6 RESEARCH 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 and U.S. The secondary sources will include text books, reports, articles and journal, and other relevant materials. The work will be subjected to content analysis.
1.7 LITERATURE REVIEW Balogun A. L in an article titled The Evolution of Divorce Law and Practice in Nigeria defined marriage is universally accepted to be an institution governed by the social and religious norms of the society. It is a union between a man and a woman13. It is apt to state that marriage as an institution has been in existence from time immemorial.
In Nigeria, the sanctity of marriage cuts across all regions of the country regardless of culture and religion.
Many decades ago, the rate of divorce in around the world was very minimal. Couples knew that marriage was contracted to keep the family genealogy going. Moreover, couples knew their roles in the family. More importantly, in Nigeria, marriage was never regarded as an individual affair. The family members had much influence on what went on in the family.
Arugu L.O in his article titled Social indicators and effects of marriage divorce in African societies stated that these trends changed immediately after the Nigerian-Biafra war, when people became increasingly individualistic and took the laws into their own hands. This was the time that family values started eroding, which eventually resulted in an increase of divorce in the contemporary society15. But today, marriage divorce is a growing social ill in our societies. This is due to several factors, which include- childlessness, adultery, quarrelling, alcoholism, socialization and technological advancement, financial difficulties, immaturity, mixed marriage, adverse influence of in-laws, religious affiliation, and educational attainment. It results in crisis for family members and causes loss of an intimate relationship that also brought security and support. It also signifies a loss of hopes and dreams as well as feeling of failure.
Grant Thomton in an annual study in the United Kingdom tilted Marriage, Money and Divorce in Medieval Society, 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, workaholism16. This is why couples should avoid and circumvent all the factors responsible for marriage divorce in order to have a happy and loving family.
Izunwa M.O in another article titled “Divorce in Nigerian statutory and customary marriages: a comparative critique of grounds, procedures and reliefs attaching thereto”, explained that divorce is a common incidence in both statutory and customary marriages. It presupposes a dissolution and/or termination of a hitherto validly celebrated marriage. However, its operation and applicability to the various legal systems; statutory and customary, differs greatly in details with regards to grounds, procedures and consequential reliefs possible. Hence to determine the grounds and recommend procedures as well as predict effects of marriage dissolution, it is relevant to first resolve the question of which form of marriage is under consideration21. Yet the determination of which form of marriage is under consideration has assumed a fresh complexity in the contemporary legal regime where for instance almost every marriage celebrated superimposes customary marriage on the statutory marriage or vice versa. In this work, an attempt is made to understudy the grounds, procedures and available consequential reliefs relating to each marriage form as arising from differential legal systems; statutory and customary law systems. This is done with a view to criticizing identifiable deficiencies in the light of human right provisions and international best practices; as well as recommending approaches considered compliant to human dignity, natural justice, equity and good conscience. Oforchukwu J.I in a thesis submitted to South African Theological Seminary titled A Biblical and Theological Study (Analysis) Of Marriage and Divorce among Igbo Catholic Christians (Nigeria), urged couples to be careful when divorce becomes the only option in partners’ relationship22. Many believe that been seriously influenced by cross-culturalization around the world has affected the attitudes of people with regard to marriage and divorce.