DISSOLUTION OF MARRIAGE : PROBLEMS AND PROSPECTS

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.

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TABLE OF CONTENT Title page Certification                                                                                                i Dedication                                                                                        ii Acknowledgement                                                                            iii Abstract                                                                                           ivChapter One:  1.0…
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