introduction to the nigerian family law

Family Law consists of a body of statutes and case law that govern the legal responsibilities between individuals who share a domestic connection, and at times, between those who share little or no domestic connection at all. Family law is a domain where issues of law and medicine; law and technology; law and morals are discussed. The field of family law is pivotal to the general well-being of persons, as a result of which the its usage defining relationships between persons. It is a fascinating area of law which captures minute details of different aspects of law. It is as interesting as it is a challenging area of law because of the constant influx and variety of social dynamics surrounding it. Family law cases involve issues arising from marriage, divorce, child custody and welfare, legitimacy and adoption, and emerging challenges of assisted reproductive technology (ART).

Family law is truly one area of law that impacts all and sundry – we are all products and components of families.

a. Definition and alteration of status: The main purpose of the law is about the concern for the rights which one member of a family could claim over another or over the latter’s property and about marriage rights and duties thereto.

b. Protection: Family Law protects weaker members of the family such as the protection of victims of domestic violence by making orders excluding a party from the matrimonial home and where the court orders that a child be taken into the care of a local authority.

c. Allotment of property and distribution of estate: The law may intervene where the termination of a family unit leaves the members inadequately provided for. The courts may make orders for this purpose, on the breakdown of a marriage. If a person dies intestate, his property will have to be distributed, and the law of succession as an essential part of Family law provides for the division of the deceased’s property amongst members of his family.

d. Resolution of disputes: The court has power to resolve disputes between members of the family which is usually called into play where the family breaks down. The subjects of disputes are the residence and upbringing of children, contact with children and the right to occupy the matrimonial home.

Family Law is a fascinating category of law which captures minute details of different aspects of the law. Its sources include:

a. The Constitution, 1999 (as amended).

b. The Marriage Act, 1914.

c. Matrimonial Causes Act, 1970.

d. Child’s Rights Act, 2003.

e. Violence against Persons (Prohibition) Act, 2015.

f. Same Sex (Prohibition) Act, 2013.

g. Married Women’s Property Act, 1882.

h. Judicial Precedents and decisions of Court.

i. Customary Law and traditions.

j. Islamic Law.

The word “family” is a concept open to several definitions. It is however universally accepted that a family is the smallest unit in the social structure of every society. It is the basis of every human community, the nucleus of the society. A set of relations involving especially children and parents, a person’s children, a household, descendants of a common ancestor and a group of similar and related people have also been referred to as family. Under a wide connotation, a family is defined to include all persons with common ancestors but under the restricted connotation, it refers to a smaller group constituting of a household. In another sense, it implies all persons related by blood or marriage and in another sense, all members of a household. Hence, we hear people speak of Nuclear family and Extended Family.

According to the Black’s Law Dictionary, family includes a group consisting of parents and their children, a group of persons connected by blood, by affinity or by law and a group of persons, usually relations who live together.

In the case of Oloba v. Akereja (1998) 3 NWLR (Pt. 84) 508, the Supreme Court stated that the concept of family in the Nigerian context includes blood relationship by marriage, that is, a person’s nuclear family and any person related to him or not who is wholly or mainly dependent upon him. That, of course, different from extended family that will include the nuclear family and other persons related by blood and marriage – grand-parents, cousins, nephews and nieces, uncles and aunts, etc.

a. Social interaction: This function is seen where children are nurtured to internalize societal norms and values.

b. Sexual gratification: The family provides an avenue for sexual gratification for spouses and reproduction of children.

c. Economic function: The family serves an economic function which is crucial for provisions, maintenance, care, training and general wellbeing.

The classical definition of marriage was stated in the old case of Hyde v. Hyde (1866) LR 1 P&D 130, where the court stated that marriage may be defined as the voluntary union for life of one man and one woman to the exclusion of all others. This definition bespeaks of monogamous marriage which is marriage under the Act.

Nigeria however, has various ethnic groups with their autonomous customary marriage practices as well as the Islamic law marriage which is an amalgam of Islamic Law principles and the principles of customary law of tribes which practice the religion and this in turn leads to a pluralism of marriage laws and a difference in what the classical definition of marriage may be. This is because the definition of marriage as being between one man and one woman to the exclusion of others begs the question as a man may marry as many wives as he is able under customary law and four wives as the limit under Islamic Law.

The forms of marriage which are recognized in Nigeria are the following:

a. Marriage under the Act also known as statutory marriage.

b. Marriage under customary law.

c. Marriage of Islamic Law.

What the court meant was that the marriage between Mr. Aboderin and Miss Pamela is invalid ab initio, from inception, it did not come into existence and does not exist. Consequently, it needs no formal act to dissolved it. By Section 3 of the Matrimonial Causes Act, a marriage is void if either of the parties at the time it took place was already lawfully married to some other person. Actually, to say that a marriage is void, is, strictly speaking, a contradiction in terms because a void marriage is no marriage at all. It is a marriage which is invalid from day one which cannot be made valid and which can be terminated by either party without obtaining a divorce. A party trapped in this kind of relationship can just end it by getting up one day to realise that he or she is living a lie, and just takes a walk . A void marriage needs no formal act to be dissolved although a judicial declaration may be obtained in order to clear any confusion that may arise as a result of it.

By Section 3 of the Matrimonial Causes Act, a marriage is void if either of the parties at the time it took place was already lawfully married to some other person. The fact of going through a statutory marriage with a third party during the subsistence of a customary or an Islamic law marriage will render the statutory marriage void. Agbeja v. Agbeja (1985) 3 NWLR (Pt. 11) 11. Furthermore, the fact of going through a statutory marriage with a third party during the subsistence of a customary or an Islamic law marriage constitutes an offence under Section 46 of the Marriage Act which is punishable with 5 years’ imprisonment. Moreover, by Section 370 of the Criminal Code Act, the act of marrying a third party in the face of a valid and subsisting marriage constitutes the offence of bigamy.

However, in order to invalidate a marriage under the Marriage Act by a prior marriage under native law custom, a high degree of proof that there was in truth a properly contracted customary marriage is required. Abisogun v. Abisogun (1963) All NLR 75.

A voidable marriage is a marriage which in all respects, is a valid marriage until a decree absolute of nullity is pronounced by a competent court. It is a marriage that will be regarded by the court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction. The difference between a void marriage and a voidable marriage is that a void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it while a voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction. Reneville v. Reneville (1949) p. 100, 111.

The statutory grounds on which a statutory marriage can be void are provided for by the law in Section 3 of the Matrimonial Causes Act and are as follows:

a. Existence of a valid marriage: Where either of the parties is, at the time of the marriage lawfully married to some other person, the subsequent marriage is void. Marriage with a third party under the Act during the subsistence of a valid marriage, whether customary or Islamic will render the subsequent marriage void and is a crime which is known as bigamy. Section 3 (1) (a), Matrimonial Causes Act, Section 33 (1), Marriage Act.

b. Prohibited degrees of consanguinity and affinity: A marriage is also void for lack of capacity if the parties are within the prohibited degrees of consanguinity or affinity. Consanguinity is a marriage contracted between parties who are related by blood while affinity is the marriage of a man with a person to whom he is related through marriage. Section 3(1)(b), Matrimonial Causes Act. It must be said however, that it is possible for persons within the prohibited degrees of affinity to marry each other with the permission of a High Court judge. Section 4 (1) – (2), Matrimonial Causes Act.

c. Non-compliance with the law of the place of celebration: The law of the place of celebration is also known as Lex Loci Celebrationis. Where parties fail to comply with the requirements of the law of the place of celebration with respect to the form of solemnization of marriages, such marriage will not be valid. Section 3(1) (c), Matrimonial Causes Act. A marriage is void under this provision of the law where it is shown that both parties to the marriage had knowledge of the defect in the formalities but willfully acquiesced to its celebration. A statutory marriage must be contracted in a Registrar’s office or in a licensed place of worship or a place prescribed in a special license, it must not be celebrated under false names, a registrar’s certificate of notice or license must be issued under Section 13 of the Marriage Act and the marriage must be celebrated by a person who is a recognized minister of some religious denomination or body or a registrar of marriages. Where parties fail to comply with the aforestated, the marriage will be void under non-compliance with the law with regards to the place of celebration of the marriage. Section 33(2)(a) – (d), Marriage Act.

d. Lack of consent: It is fundamental that parties to a marriage must have freely consented to the union. Where consent is absent, the union is vitiated. Section 3 (1)(d), Matrimonial Causes Act.

e. Either party is not of marriageable age: This entails lack of capacity because of age. If either of the parties is not of marriageable age, the marriage contracted is void. Section 3(1)(e), Matrimonial Causes Act.

There is no age prescription for marriage in the Marriage Act and the Matrimonial Causes Act. However, the other relevant laws are the Child’s Rights Act and Child’s Rights Law of various states to which recourse could be made to, all of which stipulate 18 years as the age of maturity wherein a child is considered to be an adult and of marriageable age.

Consent to a marriage will be considered as not being real consent due to the following:

a. Fraud or duress: Where consent is obtained by a dishonest representation made by a party to another, such consent is obtained by fraud while duress is where a party to a marriage is compelled to contract such a marriage by the creation of fear and apprehension. Where consent is proven to have been obtained by fraud or duress, the marriage is annulled, not because of the presence of fraud or duress but because of the absence of real consent. Fraudulent misrepresentations about financial capacity, qualifications, true personality or beliefs are not sufficient to make out fraud for the purposes of making a nullity of the marriage.

b. Mistake: Where a party is mistaken as to the identity of the other party or as to the nature of the marriage performed, consent to such marriage is considered not to be real consent and the mistake of that part makes the marriage void ab initio. It is however not every type of mistake that will lead to the invalidation of a marriage such as where a party voluntarily marries another party with a motive to gaining an advantage or attaining a large fortune but it turns out the other way after marriage. Section 3(1)(d)(ii), Matrimonial Causes Act. Marquis v. Marquis (2013) SKQB 76, C. v. C. (1972) NZLR 356 and Mehta v. Mehta (1945) 2 All ER 69 where an English woman attended a ceremony with her friend for the purpose of becoming a Hindu. The ceremony was conducted in Indian and she could not understand the ceremony. The woman not only became Hindu, but was simultaneously married to her Indian friend. The court found that the woman had no intention of marrying her friend and declared the marriage void.

c. Mental incapacity: Where a party is mentally incapable of understanding the nature of the marriage contract and consent is obtained, the consent is deemed not to be real consent and the marriage will be considered null and void. Section 3 (i) (d) (iii), Matrimonial Causes Act. The test as to determining the capacity of a person has been laid down by the court. The court stated that the general test is the fitness of the person to be trusted with the management of himself and his own concerns. Such a person has a disposing contracting mind although it may be in a degree impaired. See Estate of Park (1954) Probate 112.

A voidable marriage is one which is regarded by the law to be valid and subsisting until a decree annulling it has been pronounced by a court of competent jurisdiction. The law provides for the grounds on which a marriage is voidable in Section 5, Matrimonial Causes Act and they are stated below.

a. Incapacity to consummate the marriage: Where either of the parties to a marriage is incapable of consummating the marriage, the marriage is voidable. This means that one of the parties is impotent. Where sexual relations are partial or imperfect, there will be no consummation. Section 5 (1)(b)(a), Matrimonial Causes Act. K v. W (1943) 2 D.L.R. 102. Incapacity to consummate a marriage must be shown to have existed both at the time of the marriage and the hearing of the petition before the court can declare a marriage voidable and the court must be satisfied that the defect is not curable by medical treatment.

b. Unsound mind, mental disorder and epilepsy: Where at the time of the celebration of a marriage, one of the parties was of unsound mind or mentally defective, or subject to recurrent attacks of insanity or epilepsy, such marriage is voidable. It must be noted however, that the medical defect must have been present at the time of the celebration of the marriage. Where the medical defect arose after the marriage, it will not void the marriage. It must also be said and noted that the marriage will not be declared voidable at the instance of the party suffering from the mental deficiency or epilepsy. Section 5(1) (b)(i) – (iii), Matrimonial Causes Act.

c. Venereal disease in a communicable form: A marriage is voidable where at the time of its celebration either party was suffering from a venereal disease in a communicable form. It must be shown that the party in question was suffering from the disease at the time of the marriage otherwise it would not constitute a ground for nullity. Venereal disease in communicable form may be proved in various ways including medical evidence. Section 5 (1) (c), Matrimonial Causes Act.

d. Pregnancy of the wife by a person other than the husband: Where at the time the marriage was celebrated the wife was already impregnated by a person other than the husband, the marriage will be voidable at the instance of the husband where he had no knowledge of the pregnancy at the time of the marriage. Section 5 (1) (d), Matrimonial Causes Act. Where the husband had knowledge of the pregnancy at the time of the marriage, he will not be allowed to take out proceedings to nullify the marriage. The wife so pregnant cannot by law obtain a decree nullifying the marriage on the ground of her pregnancy by another man. Section 35 (c), Matrimonial Causes Act.

No, she cannot succeed in getting a dissolution of marriage on the said ground of sterility. Consummation requires ordinary and complete rather than partial and imperfect sexual intercourse, including erection and penetration, but not necessarily leading to orgasm. That the man is sterile or that the woman is barren is immaterial with regard to the issue of consummation of the marriage. Once a man’s erectile functionality is intact and the woman is naturally equipped and endowed to engage in coital congress with her husband, then the issue of consummation would have been well satisfied. The fact that the husband is sterile or that the woman is barren is legally irrelevant. This is because sterility is different from impotency. Sterility is the incapacity to procreate children while impotency is the inability to have normal sexual relations. Fajemisin v. Fajemisin Unreported Suit No. 1/190/67 of 2nd April, 1970.

A decree of nullity of marriage shall not be made on the ground that the marriage is voidable by virtue of Section 5 (1) (b) – (d) of the Matrimonial Causes Act unless the court is satisfied that:

a. The petitioner was, at the time of the marriage, ignorant of the facts constituting the ground.

b. The petition was filed not later than twelve months after the date of the marriage.

c. Marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the existence of the facts constituting the grounds. Section 37, Matrimonial Causes Act.

According to Section 38 (1) and (2) of the Matrimonial Causes Act, a decree of nullity has the effect of annulling a marriage from and including the date on which the decree becomes absolute. A decree of nullity of a voidable marriage will not render illegitimate a child of the parties born during the voidable marriage or render illegitimate a child born before the voidable wedlock (illegitimate) but legitimated by their voidable marriage.

Domicile is the place in which the man has voluntarily fixed the habitation of himself and family, not for a mere special or temporary purpose, but with the present intention of making a permanent home until some unexpected event occurs to induce him to adopt some other permanent home. Domicile is a conception of law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law so to have because of his dependence on some other person.

The domicile of an individual is important because it identifies him with some legal system for certain legal purposes such as matrimonial causes, legitimacy and legitimization, and succession.

The following matters are usually governed by the law of domicile in some countries:

a. Divorce.

b. Essential validity of marriage.

c. Intestate succession to property.

d. Legitimation and adoption.

e. Mutual rights and obligations of a husband and wife, parent and child.

f. The effect of marriage on the proprietary right of husband and wife.

g. To a certain degree, the annulment of marriage.

h. Wills relating to property.

The fundamental principles governing the law of domicile are the following:

a. Nobody can at any time have more than one domicile.

b. No person can be without a domicile. This is because it is necessary that every person be linked with a legal system which may govern a number of legal relationships.

c. An existing domicile is presumed to subsist until a new one is acquired. The burden of proof of a new domicile lies on the person alleging the change. The strength of the presumption varies according to the type of domicile in question. It is weakest in respect of domicile of dependence and strongest when the domicile is one of origin.

Domicile is classified into three. They are:

a. Domicile of origin: No man can be without a domicile and to secure this result, the law attributes to every individual as soon as he is born, the domicile of the father, and that of the mother, if the child is illegitimate. Domicile of origin is the domicile attributed to a person at birth. It is involuntary and does not depend on the will of the person on whom it is conferred but arises by operation of the law. The court stated in Winnas v. A.G (1904) AC 287, that the character of domicile of origin is more enduring, hold stronger and is less easily shaken off. In Bhojwani v. Bhojwani (1995) 7 NWLR (Pt. 407) 349, the Court of Appeal held that the petitioner’s domicile of origin in Singapore was not lost after he had lived in Nigeria for fourteen years due to business activities.

b. Domicile of Dependency: Under the common law, a woman is dependent on her husband for her domicile. A woman is incapable of acquiring a separate domicile even where parties are separated and are living in different countries. On being divorced or at the death of her husband, an automatic change of domicile does not occur as her affairs continue to be governed her husband’s domicile. This only changes where she acquires a new domicile by her own act. The implication of a dissolution of a marriage by decree or death on the domicile of a woman is that a woman will no longer depend on her husband for a change in domicile. However, at dissolution or death of her husband, a woman does not automatically revert to her last domicile before she got married. She retains her husband’s last domicile before the event until she acquires new domicile of choice. Re Sculland (1957) Ch. 107.

c. Domicile of choice: Any adult person except a married woman may acquire a domicile of choice. The requisite or essentials for the acquisition of a domicile of choice is actual residence in the country coupled with the present intention which is referred to as the animus manendi to live permanently in that place. In Levfre v. Levfre Suit No. HD/63/72 High Court of Lagos State, the court held a French born person as having acquired a domicile in Nigeria. This was because he had been in Nigeria for thirty-four years, spending only short vacation abroad. He got married in Nigeria and the couple had their matrimonial homes in Nigeria for the twenty-six years of their marriage. He had no house in France, he was advanced in age and both his parents were dead. It was held he was of Nigerian domicile.

– A. The two requirements which must be fulfilled and must operate concurrently for a person to obtain a domicile of choice are:

a. Residence in the chosen country: It is important that a person must actually reside in the country. Very short residence even for a couple of days may be enough to constitute domicile once the relevant animus manendi exists. Residence no matter how long will not alone constitute domicile unless it is coupled with the intention to reside there permanently. b. The existence of an intention, the animus manendi to reside permanently or at least indefinitely in that country. The fact of residence is not enough to prove animus manendi.