Abstract
The purpose of this senior research paper is to show the major legal and practical problem in relation to the law and practice of adjudicating family disputes especially divorce in Nigeria and to some extent in regional family law and then by suggest certain solution.
This paper is divided in to three chapters. The first chapter lies down the definition of dissolution of marriage, divorce and annulment.
The second chapter takes up the grounds for the dissolution of marriage and much more discussion about arbitration. Arbitration is among those alternative dispute resolution methods, which incorporate the mechanism by which disputes are resolved. Therefore, when disputes arises in marriage, the cases are considered in either of the two competent institution arbitration and courts.
The third chapter revolves around the problematic areas. It explains the power/ right of the spouses to adjudicate their family dispute especially divorce. This means that the constitution give that to the spouses to adjudicate their family cases either customarily or religiously by their own free will. The social reality towards divorces that is, as indicated in practice most spouses end their marriage outside the court room. And show the practice in relation with the law.
CHAPTER ONE
Dissolution of Marriage: A general over view
1.1 Dissolution of Marriage
When a man and woman exchange their respective consents to live together as husbands and wife, they leads in to their new relationship and the presumption is that the marriage will last for life, i.e. they assume their relationship is permanent that nothing will separate them.1 The goal of this agreement between the spouses, as it is stated is a lasting martial relationship, the union which remains binding throughout the life time of the parties (Spouses) 2.
However, the presumption does not hold always true. Different factors may hinder the spouse relationship from attaining such goal. The hindrance may result from the behavior of the spouse themselves or from other external circumstances.
It is the purpose of this chapter to deal with the concept of dissolution of marriage.
1.1.1 Definition of Dissolution of marriage
To begin with its definition, planiol defined as fallows. “The dissolution of marriage is the braking of the conjugal bond and the cessation of the effects of the spouses produced either as regards themselves or as regards third parties. The dissolution of marriage assumes its validity.”3
Blacks law dictionary also, after defining the term dissolution as an act or process of dissolving; termination defines the phrase dissolution of marriage as the act of terminating marriage.4 Therefore, if we consider these definition closely, especially of planiol, the basic assumption is that there was a marriage proceeding dissolution; that marriage was, at least conceptually, assumed valid and that it had produced some consequences on spouses as well as on third parties. Hence it is only if we have marriage that we can talk of dissolution of same. That is if there is no valid marriage, there is no such thing as dissolution of marriage. So we can say that the legal action through which the valid martial relationship of the spouse as and its consequence come to an end is called dissolution of marriage.
According to the west’s legal thesaurus dictionary “A termination of martial relationships by a judgment or a decree. And sometimes it refers to a legal separation. A limited divorce or a divorce from bed but does not dissolve the marriage.5 As one could see from the above definition there are three kinds of dissolution embodied in the definitional part.
- It is dissolution of a valid existing marriage. These type of dissolution could arise for a cause arising out of the marriage.
- It could be dissolution affected through annulment of the marriage. This could be for non fulfillment of essential conditions of marriage.
- It could be a dissolution effected through separation of husband and wife through board and bed. This type of dissolution is considered as partial divorce since it has effected only by suspending the effect of marriage so far as the cohabitation of the parties are concerned.
When we come to our laws, in almost all regional as well as federal, the definition of dissolution of marriage are not clearly defined. But by observing general situation, the kinds of dissolution embodied are more or less the same6. This are:-
- The decree of invalidation of a defective marriage due to the violation of one of the essential condition of marriage by the court.
- Decree due to the death of one of the spouse
- Decree of absence of one of the spouse
- A Valid decree of divorce
1.1.2 Definition of Annulment
According to Black’s law dictionary “annulment is to nullify, to abolish and to make void by competent authority.” In addition an annulment is the declaration that a marriage never really exist or was void from the very begining.7 This kinds of dissolution of marriage some times granted for reasons such as fraud and undue force exercised against one of the spouses or both of them. A marriage can also be annulled if either of the parties is underage or if both parties /spouses/ declare that they consider the marriage as the mere declaration or joke8. This is done or performed for the purpose of traveling or moving abroad (diversity visa.) and other purposes such as changing a work place from rural to urban areas and to have a right on government owned rental house9. Annulments differ from divorce which has the effect of dissolving the valid marriage.
Annulling a marriage can be made only if it was void or voidable at the time it was concluded or performed or practiced. Sometimes annulment has been used as an alternative to divorce.
Many countries many have defined divorce in different ways. For instance planiol defined divorce as “The rapture of a valid marriage during a life of the spouses.”10 This definition seems to imply the exclusion of a void, avoidable and death as a termination /dissolution/ of marriage. Corpus juris secundum, the restatement of American law, also put the term, in its strict legal sense, as the dissolution of a valid existing marriage, which are as if used in the wider sense, it also includes separation and annulment.11 However, the latter two are inconsistent with the modern usage of the term. It is added that “When the word divorce” is confined to its strict legal sense, it means the legal dissolution if a lawful union for a cause arising after marrieage.12 Here we can see important elements in this definitional analysis- the fact that the cause for the action of divorce is the occurrence of some changes to the spouses relationship during their marital life, i.e. after the celebration of marriage. Hence, there can be no doubt as to the fulfillment of all legal formalities during the conclusion of the marital union.
Finally according to black’s law dictionary, “divorce is the legal separation of man and woman effected by the judgment or decree of court and either totally dissolving the marriage relation.”13 So that as we clearly understand from the given definition, unless and otherwise given a decree of dissolution of marriage by the courts of law, there is no divorce.
1.2 Dissolution of Marriage comparative overview of different countries.
1.2.1 Dissolution of Marriage in U.S.A
Marriage dissolution in euphemism /in a better way/ divorce or annulment. According to the modern legal usage dictionary “dissolution of marriage in 1970 the word divorce was struck from many states and repealed /Changed/ by the euphemism dissolution of marriage.”14 So that the overview can be written about divorce and annulment. Many religious groups and most states in United States of America have strict laws saying that first cousins may not marry each other, If two persons have consanguinity and they conclude a marriage, that marriage could be automatically annulled. In the states of United States of America annulment is granted or given for fraud or undueforce exercised against one of the spouses. In addition annulment is granted for either at the parties /spouses/ are underage or if both parties /spouses/ declare that they consider the marriage as the mere declaration at the time it was performed or concluded.15
Therefore, “Annulment of marriage is a legal declaration that the marriage was void from the very beginning or inceptions because of the violation of some marriage laws, and in addition to this some states of United States of America fraudulent intent is one of the grounds for making the marriage void. Underage and bigamy are the most common and widely accepted grounds for annulment of the marriage. Other important grounds which are used for annulment are impotence, illegal marriage and failure to observe /wait out/ a legally established.
Waiting period.14
According to the American Encyclopedia “divorce is a civil action brought before the court of United States of America.” If the judge grants the divorce, they immediately issue the divorce decree that include the terms of divorce such as custody, finance support of the children for one of the marriage partner and division of common property.15
If there is fault, then the divorce is granted. In accordance with state law, the party seeking divorce can file the complaints against the other party /spouse/ giving grounds for a divorce. If one of the spouse does not want the divorce, he/she may contest or may as one of the spouse /party/ files another complaints in which he/she give grounds for seeking the divorce.16
1.2 Statement of problem
The grounds of divorce are differing from one states of U.S.A to other states of U.S.A even though in concerning of abandment, desertion, adultery and physical cruelly are the same. None support and neglect of duty and mental cruelly are the grounds of divorce in some states of U.S.A. The court must proof when the plaintiff /the party seeking divorce/ is a fault action for divorce that the spouses is guilty of actions specified in the compliant and that these sanction constitute the ground for divorce. If the complaint is contested the spouses has the opportunity of answering the charge, the judge then decide whether the divorce would be granted and under what condition it would be done.
The challenges in marriage in the contemporary period appear to be severe, and hence in some cases it requires the intervention of courts. The courts in some situations nullify the marriage even when it is against the wish of either of the couples, mostly the husband. However, nullifying of marriages in courts is mostly when reconciliation failed at times through the influence of external forces. In most of the marriage cases, which invited courts intervention that leads to nullification of the marriage usually faced another crisis from either of the party who may later appeal the case in a more superior courts or the crisis remain within the two families. Therefore, to what extent separation of marriage in courts could be determined as correct and free from any influence in its decision making? The proliferation of marriage cases to courts is an indication that the marriages guardians are weak or incapable in controlling the marriage of their children or there was neglect of the basic requirements of marriage such as sincere love between couples before marriage. Of course the courts have the right to terminate marriage when only the couple, have vehemently violated the court injunctions and are not ready to take correction, but what will be the position of the marriage that is unjustly terminated by courts? Can the unjust rulings of courts be disregarded? Who is responsible to champion the course of reconciliation when the matter is taken to court? These questions emanate from the problems that the current research seeks to address.
1.3 Objectives of the Study
The main objectives of this study are:
1. To examine the concept of divorce and other forms of separation in Nigeria
2. To evaluate the problems and challenges of marriage, in Court in Kaduna state.
3. To assess the factor responsible for deterring reconciliation of marriage cases at home without going to the court.
4. To explain the general implications of termination of marriage by court
1.4 Research Questions
The study is out to find answers to the following research questions.
1 What are the concept of divorce and separation of marriage in Nigeria?
2 What are the problems and challenges of marriage separation in courts in Kaduna state?
3 What are the factors responsible for deterring process of reconciliation of marriage cases at home without resulting to court/?
4 What are the general implications of marriage termination in court?
1.6 The Significance of the Study
Marriage is rationally expected to be based on love and mutual confidence among the marriage couples. This research will therefore guide the couples to resolve their cases between them or through the assistance of marriage counselors. Similarly, court judges are expected to serve as arbitrators who seek as a mission to reconcile and promote love between the disputing lovers. However, in the recent periods marriage cases are always resolved to be taken to court and some judges allowed influence in their decisions as judges.
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Item Type: Project Material | Size: 40 pages | Chapters: 1-5
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