ABSTRACT
The decree of dissolution of marriage which is defined as the legal separation of 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 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
It is universally accepted that, marriage is the union between a man and a
woman.1Marriage 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
1Nwogugu E.I ‘Family Law in Nigeria’ (Heinman Educational Books Nig) PLC 1990
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 Hyde2 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.
2(1886) LR 1 P & D 130, 133.
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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
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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.
3 Black’s Law Dictionary 5TH Ed P.431.
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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:
a. To provide enlightenment to intending couples on how to ensure
stability in marriage.
b. To encourage good harmonious relationship not only among intending
couples but also among married persons.
c. To redirect the attention of parents to the need to consider the well
being of their children instead of seeking for divorce.
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d. To draw attention to the social and economic problems children of
divorced couples pose for a nation.
e. To let all and sundry be aware of the evil of dissolution of marriage and
the need to avoid it at all cost.
f. 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.
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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.
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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 Westermarck4 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
4 Edvard Westermarck, The Future of Marriage in Western Civilization (1936)
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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. Onokah5 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 Thomton6 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.
5 Margret C. Onokah: ‘Family law’ (Spectrum Books Limited) 2003
6 Grant Thomton (2005). ‘Marriage, Money and Divorce in Medieval Society’ (Cambridge
University Press),pg2.
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· 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.