The sole basis of divorce law in Nigeria is the irretrievable breakdown principle. The Matrimonial Causes Act provides that a petition by a party for a decree of dissolution of marriage may be presented by either party to the marriage upon the ground that the marriage has broken down irretrievably. Section 15(1), Matrimonial Causes Act.
The court hearing a petition for a decree of dissolution of a marriage shall hold a marriage to have broken down irretrievably if a petitioner satisfies the court of one or more of the following facts:
a. That the respondent has willfully and persistently refused to consummate the marriage. Jodla v. Jodla (1960) 1 All ER 625.
b. That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
c. That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
d. That the respondent has deserted the petitioner for a continuous period of at least ONE YEAR immediately preceding the presentation of the petition.
e. That the parties to the marriage have lived apart for a continuous period of at least TWO YEARS immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.
f. That the parties to the marriage have lived apart for a continuous period of at least THREE YEARS immediately preceding the presentation of the petition.
g. That the other party to the marriage has for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under the Matrimonial Causes Act.
h. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
What constitutes willful and persistent refusal to consummate will depend on the facts of each case. Willful and persistent refusal to consummate a marriage however, connotes a conscious act of volition not to comply with the request for sexual intercourse. This in turn implies that there must have been attempts, direct or implied and opportunity to comply with the request for sexual intercourse. Jodla v. Jodla (1960) 1 All ER 625.
Yes, a legal issue arises. The marriage sought to be dissolved by Mr. Belemina has not reached the two years’ bench mark set by the law. By the Matrimonial Causes Act, proceedings for the dissolution of marriage shall not be instituted within two years after the date of the marriage, except by the leave of court.
The legal issue can however be resolved by Mr. Belemina seeking the leave of court. Section 30 (1), Matrimonial Causes Act. It must however be said that the court will not grant the leave except on the ground that refusal to grant leave would impose exceptional hardship on the applicant, in this case, Mr. Belemina or that the case is one involving exceptional depravity on the part of the other party to the marriage. Section 30(3), Matrimonial Causes Act.
Though the term is not defined in the legislation, the court has held that burning the applicant’s certificates, threats to life, failure to cook for the other spouse and to perform basic wifely duties, starving the other spouse of sexual relations and desertion could constitute exceptional hardship. It is within the discretion of the court to determine whether there is the existence of exceptional hardship or not. William v. Williams (1979) 1 All ER 556, Majekodunmi v. Majekodunmi (1966) NMLR 191. The court has held that excessive sexual demands when the petitioner was in poor health and had just returned from the hospital, physical violence, constant neglect and quarrelling constitutes exceptional depravity. Akere v. Akere (1962) WNLR 328. A judge, in order to reach a decision may take into account not only the present hardship arising from the conduct of a spouse, but also the hardship emanating from having to wait until the specified period has elapsed. Brewster v. Brewster (1964) 1 WLR 403.
A motion to institute proceedings for an application under exceptional depravity must not be made on notice. It may be made ex parte. It must however be supported by affidavit which must include the following:
a. Particulars of the exceptional hardship that would be imposed on the applicant by the refusal to grant the leave or particulars of the exceptional depravity on the part of the other party to the marriage that is alleged, as the case may be.
b. Grounds upon which, if leave is granted, the applicant intends to petition for the decree.
c. State whether or not the applicant has made a previous application for the leave under the Matrimonial Causes Act to institute proceedings for such a decree, and, if a previous application has been made, it must state the date and ground on which, and the court to which the previous application was made and whether the application was granted.
d. State whether or not a child of the marriage is living, and if a child of the marriage is living, also state the name of the child, the date of the birth of the child and the place at which, and persons with whom the child is residing.
e. State whether an attempt has been made to effect a reconciliation between the parties to the marriage, and if such an attempt has been made, state the particulars of the attempt.
f. State the particulars of any other circumstances that may assist the court in determining whether there is a reasonable probability of reconciliation between the parties before the expiration of the period of two years after the date of the marriage.
Adultery is the voluntary sexual intercourse between two persons of the opposite sex, of whom one or both are married but are not married to each other. Erhabon v. Erhabon (1997) 6 NWLR (Pt. 510) 667.
The element of freewill is important to the concept of adultery. It is not every act of indecency or mistake that constitutes adultery, therefore, to be guilty of adultery, a person must have submitted to, or had intercourse voluntarily.
The two essential elements that must be satisfied before the court determines whether a marriage has broken down under Section 15(2) (b) of the Matrimonial Causes Act are firstly, the commission of adultery and secondly, the petitioner finding it intolerable to live with the respondent. These elements must be established and proven to have occurred after the celebration of the marriage.
The following are the instances which the court will hold adultery not established:
a. Where a spouse has extra- marital sexual intercourse against his or her real consent.
b. Adultery cannot be established against an insane party, if he does not know that the nature of his act was wrong.
c. Insemination by a donor does not amount to adultery.
d. Where a spouse has extra-marital sexual intercourse while under the influence of alcohol or drugs so that the nature and consequences of the act is not understood, adultery will be held not to be established as the position is akin to insanity. However, where it is proved that the intoxicant was consumed with the knowledge of its effect, the spouse may be accused of adultery.
The nature of the act of adultery makes it difficult to obtain direct evidence of its commission. Adultery is usually inferred from several circumstances apart from rare cases where spouses are caught in the adulterous act. Adultery may be inferred from surrounding circumstances such as the following:
a. Familiarity: Excess familiarity between the respondent and the co-respondent is not sufficient to establish adultery but it must be shown that there was opportunity to commit adultery. Where a respondent and co-respondent who are fond of each other are seen kissing each other, embracing themselves and spending hours together from which no proper account was given, adultery can be inferred. Akinyemi v. Akinyemi (1963) 1 All NLR 340.
b. Birth of a child: The court will hold the commission of adultery to have occurred when there is birth of a child during the subsistence of a marriage to a respondent, to which the petitioner is not a parent of that child. Pregnancy or the birth of a child for a man married under the Act by a woman other than his legal wife will give rise to the inference that the former has committed adultery. The birth of a child by a wife during the marriage, when the husband had no access constitutes evidence of the commission of adultery. Erhabon v. Erhabon (1997) 6 NWLR (Pt. 510) 667.
c. General cohabitation: Where a party to a marriage is shown to have lived with the co-respondent during the subsistence of marriage to the petitioner, the court will infer the commission of adultery. Evoroja v. Evoroja (1961) WNLR 6.
d. Suspicious circumstances: The court may in certain cases conclude that adultery was committed due to suspicious circumstances. Where a husband visits a wife living apart from him at night and notices the wife’s bedroom in darkness and when the door is opened, the wife and another man are in a state of dishabille, adultery may be inferred from the circumstances. Adeyemi v. Adeyemi (1969) 2 All NLR 181.
e. Conviction of rape: Where there is evidence that a party to a marriage was convicted in Nigeria or elsewhere of rape or any other offence in which sexual intercourse with a person of the opposite sex is an element, it will be evidence that the convicted person committed adultery with the person on whom the rape or other crime was committed. A certificate signed by the registrar or appropriate officer of the court shall be deemed as evidence of the fact and date of conviction. Section 87 (1) (a) Matrimonial Causes Act.
f. Confession and admission: Where a respondent admits to a co-respondent being the mother or father of his or her child, the court will hold the commission of adultery as being established. Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297, Megwalu v. Megwalu (1994) 7 NWLR (Pt. 359) 718.
g. Blood test and DNA: In determining whether the applicant is the father or mother of the child, recourse is conferred on the Family Court on the application of a party to any civil proceedings, in which the paternity or maternity of a person falls to be determined, on the use of scientific tests including blood tests and DNA. A court has no power to compel a party to submit to a blood test but it may, draw appropriate conclusion from a refusal.
h. Venereal disease: Where a spouse suffers from a venereal disease which was not contracted from the other spouse, there is a presumption of adultery. Such presumption may be rebutted by proving that the disease was contracted otherwise than by adultery. Butler v. Butler (1917)
i. Frequenting hotels or night clubs with strangers: Frequent visits to nightclubs or hotels with strangers raises a presumption of adultery. Adeyinka v. Ohuruogu (1965) 1 All NLR 210.
Yes, it is fatal to his case. In a petition for a decree of divorce, the joinder of the co-respondent is mandatory and failure to do so could amount to a fundamental defect that could defeat the claim based on adultery. Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297.
In a petition for divorce, where a spouse is alleged to have committed adultery with a specified person, the co-respondent must be made a party to the proceedings, unless the rules of court direct otherwise. Section 32(1), Matrimonial Causes Act.
Where a petitioner alleges in a petition for divorce that the respondent has committed adultery with a person whose name is unknown to the petitioner at the time of filing the petition, the suit shall not be set down for trial unless the court has made an order dispensing with the naming of that person.
Order IX Rule 3(1), Matrimonial Causes Rules. Where a petitioner becomes aware of the name of the person before the making of the decree of divorce, the petition is to be amended accordingly. Order IX Rule 4 Matrimonial Causes Rules.
A person who has been made a co-respondent to a divorce proceeding on the grounds of adultery may apply to the court to be dismissed from the proceedings but the court will only approve such application if it is satisfied that the allegation of adultery has not been proved. Section 32(3) Matrimonial Causes Act.
No, a petitioner can only claim damages against a co-respondent and not a respondent. Section 31 of the Matrimonial Causes Act permits a petitioner who is basing his petition on adultery to claim damages from the co-respondent and also empowers the court to award such damages.
To succeed however, in a claim for damages against a co-respondent, the petitioner must prove before the court that the respondent, that is the other spouse, committed adultery with the co-respondent. Ekrebe v. Ekrebe (1992) 3 NWLR 514.
Where a petition is for judicial separation, a claim for damages cannot be sustained against a co-respondent by a petitioner. Bamgbala v. Bamgbala (1976) 5 CCHCJ 141.
The instances where damages will not be awarded by the court in a petition on the grounds of adultery are:
a. The court will not award damages where the adultery of the respondent with the third party has been condoned, whether subsequently revived or not.
b. The court will not award damages in respect of adultery committed more than three years before the date of the petition. Williams v. Williams (1974) 1 All NLR 504, Re Olawole Onile-ere (1974) 1 NMR 363.
The principle on which damages are awarded for adultery is that the husband or wife must be compensated for the loss of consortium of his or her spouse and the feeling of hurt that may have accrued from the adulterer.
It must be proved that the co-respondent adulterer had knowledge of the form of marriage which the respondent had celebrated as at the time of the adultery. Constructive knowledge can also be imputed to the co-respondent. Ogunleye v. Ogunleye (1979) 1 FNR 22.
However, where it is shown that the co-respondent believed that the respondent was married under customary law at the time of the adulterous act then the act itself will constitute adultery under customary law and the co-respondent would not therefore be liable to pay damages to the aggrieved spouse of the statutory marriage.
The fact that that a petitioner and respondent were living apart or that the marriage had broken down at the time of the adulterous association with a respondent does not exonerate the co-respondent from liability but is only a matter for the mitigation of damages. Williams v. Williams (1987) All NLR 253.
Previously, under Section 15(2)(c) of the Matrimonial Causes Act, the mere allegation or proof of adultery was not sufficient basis for the dissolution of marriage, it had to be established that the petitioner found it intolerable to live with the respondent. However, under Nigerian law, it is now settled law that the provisions of the subsection are to be interpreted as being independent of each other so that the applicant may not rely only on the adultery, but also on any matter to show that further cohabitation would be intolerable. This was the position of the court in the case of Cleary v. Cleary (1974) 1 All ER 498.
A petitioner who seeks to show that marriage has broken down irretrievably by showing that the respondent has behaved in such a way that the he/she (Petitioner) cannot reasonably be expected to live with him or her must show that the behavior complained about was grave and weighty and whether the respondent’s behavior has been such that the petitioner cannot be reasonably expected to live with him or her is a question of fact. The court has held that such behavior which a petitioner cannot be not reasonably expected to live with includes physical violence, excessive drinking of alcohol, unreasonable sexual relationship with women of questionable character, starving the petitioner of normal sexual relationship, indulgence in late night parties and any other circumstance that may have serious effect on the petitioner. Olagundoye v. Olagundoye (1976) ENR 255, Salako v. Salako (1973) 11 CCHCJ 105.
Where it is alleged in a petition for dissolution of marriage that a wife or husband is unable to give the demonstrative affection craved and it is found that all the necessary and needed affection is being given by the spouse so charged, the petition will be dismissed. Pheasant v. Pheasant (1972) FAM 202.
According to the case of Katz v. Katz (1972) 1 WLR 955, behavior is something more than a mere state of affairs or a state of mind, such as for example, a repugnance to sexual intercourse or a feeling that the wife is not being demonstrative as he thinks he should be. Such conduct may either take the form of acts or omissions or may be a course of conduct and it must have reference to the marriage.
Where the behavior complained about stems from misfortune such as physical or mental illness as in the case of Miss Olagbegi, or an accident, the court takes full consideration or account of all the obligations of the married state including the normal duty to accept and share the burdens imposed by the respondent’s ill health, the length of time the applicant has had to bear them, the effect upon the health of the applicant and capacity to bear the stress imposed and whether the applicant can fairly be required to live with the respondent. Thurlow v. Thurlow (1976) Fam 32.
While the court will take it up from the start-point marriage being for better and for worse, it will look at all the causes and circumstances of the incapacitated partner, examine the state of the Applicant and what all of these could mean to the life and wellbeing of both the sick Respondent and the Applicant before arriving at a decision.
Rape: Where since the celebration of the marriage, the respondent has committed rape, sodomy or bestiality, such conduct is grave and would enable a court to conclude that the petitioner cannot be reasonably be expected to live with the respondent. Section 16 (1) (a) Matrimonial Causes Act.
b. Habitual drunkenness or intoxication: If the respondent since the marriage has for a period of at least two years, been a habitual drunkard, or habitually been intoxicated by reason of taking or using excessive sedative narcotic or stimulating drug or preparation, the petitioner cannot reasonably be expected to live with respondent. By law, a habitual drunkard has been described as one who as a matter of habit consumes intoxicating liquor to an extent that it makes him incapable of controlling his language and actions with due regard to the rights and feelings of others, or to his own safety and self-management. Sullivan v. Sullivan (1954) V.L.R 67.
c. Frequent convictions and habitually leaving the spouse without support: Where since the marriage the respondent has within a period not exceeding five years suffered frequent convictions for crime and has been sentenced in the aggregate to not less than three years imprisonment and in addition, must have habitually left the petitioner without a reasonable means of support, the court will hold that the petitioner has satisfied the court that the respondent has behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent. Section 16(1) (c) Matrimonial Causes Act.
d. Imprisonment: This is a case where since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or by imprisonment for life, or for a period of five years or more, and is still in prison at the date of the petition. Shon v. Shon (1962) 4 FLR 115.
e. Attempt to murder and assaults: This includes situations where since the marriage, and within one year immediately preceding the date of the petition, the respondent has been convicted of an attempt to murder or unlawfully kill the petitioner.
f. Habitual and willful failure to support: The court may hold that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him where the respondent has habitually and willfully failed during the two years immediately preceding the date of the petition to pay maintenance to the petitioner under a court order or a separation.
g. Insanity: One of the situations envisaged under Section 15(2) (c) Matrimonial Causes Act is that at the time of the petition, the respondent is of unsound mind and unlikely to recover. It must be proved that since the marriage and within a period of six years immediately preceding the date of the petition, he or she has been confined for a period or periods of not less than five years in one or more institutions in or outside Nigeria, where persons of unsound mind are confined. Section 16 (1) (g) Matrimonial Causes Act.
Mr. Ulrich Wokoma is likely to bring the petition for dissolution of the marriage under the ground of desertion.
Desertion is the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. Ikwenobe v. Ikwenobe (2004) 1 LHCR (Pt.4). A marriage will be regarded as having broken down irretrievably where the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition. Section 15(2) (d) Matrimonial Causes Act.
The two types of desertion are the simple desertion where a spouse has abandoned the matrimonial home and constructive desertion, where the spouse remains at home he/she is said to be in desertion because by his/her conduct, he/she have expelled the other spouse. This brings to bear what Lord Merrivale, P., stated in the case of Pulford v. Pulford 2 All E.R. 1025 that desertion is not the withdrawal from a place, but from a state of things.
The elements that must be present at the same time to constitute desertion are the following:
a. De facto separation of the parties: De facto separation implies the bringing to an end of cohabitation by severing all marital obligations. An obvious case is when one party physically departs from the matrimonial home. De facto separation can also occur when a spouse, though does not leave the matrimonial home, but repudiates and abandons all marital obligations. Perry v. Perry (1952) 1 All ER 1076, Rosanwo v. Rosanwo (1961) WNLR 297.
There may be de facto separation but not desertion where parties are living apart against their will, either by imprisonment or incarceration. Beeken v. Beeken (1959) WNLR 314.
b. Animus deserendi: This is the intention to withdraw from cohabitation permanently. Where a spouse voluntarily abandons the matrimonial home, there is a presumption that he/she intended to desert and the desertion starts at the moment of departure. G v. G. (1964) 1 All E.R. 193. If in the course of separation, due to mutual consent, one of the parties forms the intention to withdraw permanently from the other, desertion starts from the moment the intention was formed.
c. Lack of just cause for the withdrawal from cohabitation: The deserter is most often not necessarily the spouse who lives separately and apart from the matrimonial home. Such spouse may have been compelled by the conduct of the other spouse, which constitutes just cause or excuse for living apart. A spouse will only be guilty of desertion, if there is no good cause for his leaving the deserted spouse. The real deserter is the party whose conduct is responsible for the cessation of cohabitation. Section 18, Matrimonial Causes Act. Sowande v. Sowande (1960) LLR 58.
The general principle is that any conduct which makes the continuance of matrimonial cohabitation virtually impossible will provide a good excuse for a spouse to desert. Jackson v. Jackson (1932) 146 LT 406. A spouse may, for instance, withdraw from cohabitation on account of ill-health or imprisonment. Keeley v. Keeley (1952) 2 TLR 756. Mental illness, except where it constitutes a threat to the health of other members of the family, is not per se a good cause for withdrawal from the matrimonial home.
d. The absence of the deserted spouse: A spouse who leaves the matrimonial home without the consent of the other spouse maybe in desertion. If there has been separation by mutual agreement, desertion will supervene once one party withdraws his consent to that state of affairs. There is no desertion if the petitioner consented to the separation. Ikpi v. Ikpi (1957) WNLR 59.
Consent to separation may take the form of a separation agreement. Such agreement need not be in writing or embodied in a deed, but it must provide for the spouses living apart. Smith v. Smith (1945) 2 All ER 452. However, if a party consents to the separation, he cannot be held to complain of it but the consent must be genuine and not obtained by duress, fraud or misrepresentation. Holroyd v. Holroyd (1920) 36 TLR 479.
No, desertion has not occurred in this case. There is no desertion if as a result of a spouse’s employment, he or she is transferred to another station from where the matrimonial home is located. Ekanem v. Ekanem (1957) 1 NMLR 235.
Desertion as an offence must run throughout a stipulated period but it may be brought to an end before the expiration of the statutory period. Desertion is held terminated when the following happens:
a. Resumption of cohabitation: The resumption of cohabitation by the spouses, removes the element of de facto celebration, thereby putting an end to desertion. Cohabitation is resumed where the parties resume residence under the same roof and consortium is restored. The physical cohabitation must be accomplished by the mutual intention to set up a home. Mummery v. Mummery (1942) P. 107. Cohabitation may be resumed even though the parties have no house to go to if there is the necessary intention. Abercrombe v. Abercrombe (1943) 2 All ER 465.
b. Offer to return: This also known as animus revertendi. The loss of animus deserendi will terminate desertion. Such loss must not be inferred. It must be communicated to the other spouse by an offer to return. The offer to return must be reasonable and genuine. Pratt v. Pratt (1939) AC 417. For an offer to be genuine, the party making it must have both the intention of resuming cohabitation and the means of implementing it if it is accepted. Fraser v. Fraser (1969) 1 WLR 1787. The deserted party is bound to accept a genuine offer or he will run the risk of being in desertion himself. Where a separation agreement is in force which may be written, oral or by conduct, the refusal of one spouse without reasonable justification, to comply with the other bona fide request to resume cohabitation will, from the date of such refusal, put the party so refusing in desertion. Section 19(1), Matrimonial Causes Act.
c. Supervening consent: The spouse that deserted may bring to an end the desertion by subsequently giving his consent to separation. Such consent may take the form of a separation agreement, judicial separation, or a separation order.
d. Petitioner’s adultery or other misconduct: Where the petitioner commits adultery, and it is known to the respondent, this will terminate the latter’s desertion, because the offense of adultery provides a good cause for living apart. The exception to this rule is where it can be shown that the respondent was not influenced by the misconduct in deciding to continue the desertion. Herod v. Herod (1938) 3 All ER 722.
e. Insanity: In a petition for dissolution of marriage on the grounds of desertion by a spouse who is insane, it is for the petitioner to prove that an insane respondent is capable of forming the necessary intention to desert. On the question of the continuation of the desertion after insanity has supervened, the fact that the deserting spouse has become incapable of forming an intention to continue the desertion will not terminate it if the court is satisfied that the desertion would probably have continued if the deserting spouse had not become insane. Section 20, Matrimonial Causes Act.
No, mere physical separation does not constitute living apart under Section 15 (2) (e) of the Matrimonial Causes Act. Living apart involves physical separation accompanied by the termination of consortium. There must be a clear intention on the part of one or both spouses not to return to the other and the treatment of the marriage as having come to an end. Where the parties are compelled by the exigencies of external circumstances, such as absence on professional or business pursuits, ill-health, confinement in jail or outbreak of war to live apart, the situation will not amount to living apart under the Matrimonial Causes Act.
A decree for divorce will be denied if absolute or discretionary bars apply to the case. They are:
a. Absolute bar: There are three absolute bars to a petition for divorce. The court is bound to dismiss the petition where there is proof of an absolute bar. The absolute bars are condonation, connivance and collusion.
b. Discretionary bar: There are three discretionary bars. The court has discretion on whether to dissolve the marriage if one of the defenses can be established. The discretionary bars include petitioner’s adultery, petitioner’s desertion and conduct conducing to the commission of a matrimonial offence.
The following are absolute bars to the grant of a decree of divorce:
a. Condonation: This is the forgiveness of a spouse who has committed a marital misdemeanor and his or her reinstatement to the position of a spouse. This operates to bar a party from obtaining a decree of divorce on the fact of that marital misdemeanor or unreasonable behavior. Okala v. Okala (1973) E. C. S. L. R. 67, **Sotomi v. Sotomi **(1976) 2 F.N.L.R. 165.
There cannot be condonation without knowledge. The party who forgives must have knowledge of the misconduct which has been committed. Bernstein v. Bernstein (1893) P 292. The two main constitutive elements of condonation are forgiveness and reinstatement. Forgiveness alone without reinstatement cannot constitute condonation.
b. Connivance: A decree of dissolution will not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based. Where a petitioner has consented, encouraged or willfully contributed to the commission of the misconduct on which a petition for divorce is based, he will be refused a decree of divorce on the ground that he connived at the misconduct. Section 26, Matrimonial Causes Act, Gripps v. Gripps (1864) 11 ER 1230, Gorst v. Gorst (1952) 1 All E.R. 1194.
c. Collusion: This is an agreement between the petitioner and respondent to act in concert, to procure the initiation or prosecution of a suit for divorce with intent to cause a perversion of justice. Agreement between the parties to a divorce suit is treated as suspicious because it often deprives the court of the freedom of eliciting the whole truth. There cannot be collusion without agreement and collusion will arise if the agreement is between the parties’ agents just as it would if they acted personally. To constitute collusion, there must be two elements. The elements are agreement and improper motive or purpose. Section 27 Matrimonial Causes Act.
Collusion is not a permanent bar to a petition for divorce. A party is therefore free to present a fresh petition which is not collusive.
The court has the discretion on whether or not to make a decree dissolving a marriage when a petition for dissolution of marriage is placed before it. The following are the discretionary bars to the grant of a petition for dissolution of marriage:
a. Adultery of the petitioner: The adultery of a petitioner that has not been condoned is deemed to be a discretionary bar, no matter the facts of the petition for a decree of divorce. It must be specifically requested that the court exercises its discretion in favor of the petitioner where the petitioner has committed adultery. Where the adultery has been condoned, it cannot serve as bar unless it has been revived by a subsequent misconduct. Section 28 (a) Matrimonial Causes Act, Ambe v. Ambe (1975) NMLR 28.
b. Desertion of the petitioner: The court has the discretion to refuse a decree of divorce in favor of a petitioner who has deserted the respondent willfully before the commencement of the petition. If the petitioner has good cause for deserting the other spouse, his conduct will not constitute a discretionary bar. No specific period is prescribed for the desertion. Section 28(b) Matrimonial Causes Act.
c. Conduct conducing: Where the conduct of the petitioner is such that it conduced or contributed to the existence of the ground for divorce relied upon by the petitioner, the court may refuse to grant a decree of divorce. Section 28 (c) Matrimonial Causes Act. There must be proof of the wrongful act or omission that supports the demand for divorce. Haevecker v. Haevecker (1936) 57 CLR 639.
The conduct must also be shown to have contributed to the respondent’s offence. Burgess v. Burgess (1917) NZLR 563.
The exercise of discretion in favor of a petitioner who discloses his own misconduct cannot arise when a petitioner has failed to establish the matrimonial offence committed by the respondent. Adaramaja v. Adaramaja (1962) 1 All NLR 247.
In the case of Bull v. Bull (1965) 1 All ER 1057, the exercise of the court’s discretion whether or not to grant a decree for dissolution of marriage was stated to fall into three categories which are:
a. The first consists of factors relating to the interest of the persons directly or indirectly affected by the suit. This includes taking into consideration whether there is a reasonable prospect of reconciliation between the spouses if the marriage is not dissolved, the position and interests of any children of the marriage, the interest of the party with whom the petitioner has been guilty of adultery, with special regard to their re-marriage, the interest of the petitioner, with special regard to the point that the petitioner should be able to re-marry and live respectably and the interest of any children born of the adulterous association.
b. The second includes all other relevant factors relating to the married life of the parties.
c. The third category is based on the principle that it is public interest that matrimonial relief should be granted on the basis of complete candor and truthfulness on the part of the party seeking relief.
A decree of dissolution of marriage will only be granted by the court after evidence by the petitioner has been received in support of the petition. Where the court is satisfied of the existence of any fact in respect of which relief is sought, it shall go ahead and grant the appropriate decree. Section 44(3) and Section 55 Matrimonial Causes Act.
Where a petition for nullity of a marriage and petition for dissolution are before a court, no decree for divorce may be made unless the petition for nullity is first dismissed. The rationale of this rule is that the court has to determine whether in fact there is a valid marriage which can be dissolved.
If for instance, the nullity petition succeeds, there will be no marriage in respect of which a decree of divorce may be granted.
A decree of dissolution is granted in two stages, first, a decree nisi, followed after the expiration of a period of three months, by the decree absolute. Where there are children of the marriage who are under the age of sixteen years at the date of the decree nisi, or who in special circumstances have attained the age of sixteen years at that date, special rules apply in determining whether or not to make the decree absolute.
In such cases, the decree nisi will not become absolute unless the court is satisfied that by its order, proper arrangements have been made for the welfare of the children. The welfare includes provision of education, or any other special circumstances making it desirable that the decree nisi should become absolute notwithstanding that arrangements have not been made. Adeyinka v. Adeyinka (1971) 1 NMLR 255.
Yes, a decree nisi which becomes absolute may be rescinded on any of the three grounds below:
a. A court may on application of a party to the marriage rescind the decree nisi on the ground that the parties have become reconciled.
b. Rescission may be ordered by the court on the application of either party where it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstances.
c. Where an intervention takes place after a decree nisi has been made, the court may rescind the decree, if it is proved that the petitioner has been guilty of collusion with intent to cause a perversion of justice or that material facts have not been brought before the court.
A decree absolute dissolves the marriage between parties and a party to the marriage may marry again as if the marriage had been dissolved by death. Section 33 Matrimonial Causes Act.
Intervention in a matrimonial proceeding is where a non-party becomes involved to assist the court in eliciting the full facts of the case, and thereby prevent the perversion of justice.
The persons who may intervene in a matrimonial proceeding are:
a. The Attorney General of the Federation: Where the Attorney General of the Federation intervenes directly or through a representative to whom he has delegated his functions, a notice or intervention in Form 42 must be filed accompanied by a statement containing particulars of the matters relevant to the proceedings which he believes has or may not be raised which ought to be brought to the attention of the court. Both documents are to be served on each of the parties to the proceedings.
b. Any other person: A person may apply to the court to intervene in proceedings for dissolution or nullity of a marriage, judicial separation or restitution of conjugal rights. If the court is satisfied that the applicant may prove facts relevant to the proceedings which has not been brought to the attention of the court, it may at any time before the decree absolute, by order authorize the person to intervene. A person who intervenes by leave of court will be deemed to be a party in the proceedings with all the rights, duties and liabilities of a party.
There are two different circumstances in which the Attorney General of the Federation may intervene in matrimonial causes. They are:
a. At the request of the judge: The Attorney General may at the request of the judge intervene to contest or argue any question arising in the proceedings.
b. Where relevant matters have not been brought to the knowledge of the court: Where the Attorney General has reason to believe that relevant matters have not been brought to the knowledge of the court in any proceedings for the nullity or dissolution of marriage, judicial separation or restitution of conjugal rights, in relation to the custody or guardianship of children, he may at any time before the decree is made absolute, intervene in the proceedings.
Yes, an intervention can occur after a decree nisi has been made. If an intervention takes place after a decree nisi has been made and the court is satisfied that the petitioner has been guilty of collusion with intent to cause a perversion of justice, or the material facts have not been brought before the court, it may rescind the decree.
Yes, a decree of dissolution of marriage made by a foreign court will be recognized in Nigeria if it was made by the court of the domicile of the petitioner or respondent at the time of the institution of the proceedings. It is immaterial that it did so on a ground not recognized in Nigeria as a basis for divorce so long as the divorce is granted by the court of the domicile. Section 81 (3) (a) – (b), Matrimonial Causes Act.
A court of the domicile is a court which annuls a marriage either in favor of a deserted wife who was domiciled in that foreign country immediately before her marriage or desertion, or in favor of a wife resident in that foreign country and who has been resident for a period of three years preceding the proceedings.
A dissolution or annulment effected accordingly with the law of a foreign country will be recognized in Nigeria if its validity would have been recognized under the law of the foreign country in which, both parties were domiciled in the case of dissolution or one party was domiciled in relation to annulment. Section 81 (4) Matrimonial Causes Act.
A petition for the decree of jactitation of marriage is based on the ground that the respondent has falsely boasted and persistently asserted that a marriage has taken place between the respondent and the petitioner. The court has absolute discretion whether or not to make the decree if it is shown that the petitioner acquiesced, relief may be denied. Section 52 Matrimonial Causes Act.
Custody is the care, control and maintenance of a child awarded by the court to a responsible adult. It is the responsibility for a child in regard to his needs such as food, clothing, education etc. Custody is essentially concerned with the control, preservation and care of the child’s person physically, mentally and morally. It involves two elements which are, legal and physical custody. An award of custody by the court usually grants both rights. A court may grant divided custody by which each parent has exclusive physical custody, full control of and responsibility for the child part of the time, with visitation rights in the other parent. In other cases, the court may order joint custody by which both parents share the responsibility for the authority over the child at all times, although one parent may exercise parental physical control.
The principles which guide the award of custody was established in the case of Williams v. Williams (1987) All NLR 253 and they are:
a. The court in deciding the question of custody shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any point of view the claim of the father in respect of the custody is superior to that of the mother.
b. In relation to the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father and the rights and authority of both father and mother shall be equal and exercisable by either with the other.
c. There is no rule that states that the mother has a paramount claim as against other relations especially where the father is alive and supports the application of those relations. Re A, an infant (1959) C.L.Y. 950.
d. The first and paramount consideration is the welfare of the child but it is not the sole consideration as the conduct of the parties will be taken into account.
e. The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery make it desirable.
f. All the circumstances must be considered.
g. When there is more than one child of the family, the court takes into consideration brotherhood and sisterhood. Wakeham v. Wakeham (1954) 1 All ER 434.
h. There is a settled rule that a child of tender years should remain in the custody of the mother. The care and supervision that a mother who is not out at work can give to little children is an important factor.
i. In custody cases, though the child is given the paramount consideration, it is not to punish a spouse for misconduct.
j. The wishes of an unimpeachable parent stand first.
Yes. The court has wide discretionary powers, and it is empowered to grant custody of a child to a third party either permanently or as an interim measure if it considers it to be in the child’s best interest. Section 71(3) Matrimonial Causes Act.
The court is required by law to state in the award of custody to a party that it is satisfied with the arrangements made by that party for the welfare of the child. Section 57 (1) (a) Matrimonial Causes Act, Oladele Kafi v. Eunice Kafi (1986) 3 NWLR (Pt. 1750 27, Dejonwo v. Dejonwo (1993) 7 NWLR (Pt. 306) 438.
The parties in whose favor an award of maintenance may be made are:
a. Spouse of a marriage: Despite the fact that the obligation of a husband to maintain his wife terminates with the dissolution of marriage under common law, the statutory provisions prescribe for maintenance both during the proceedings for divorce and thereafter. The court is empowered to make an order of maintenance pending the disposal of the matrimonial proceedings which terminates if one of the spouses to the suit dies or at the determination of the suit. Maintenance of a spouse after the dissolution of a marriage is a matter within the discretion of the court to grant or withhold. However, by the vast majority of decisions of court, the assumption throughout is that the husband is duty bound to maintain the wife and the courts merely concern themselves in determining whether the maintenance should be awarded and what amount should be assessed.
b. Children of the marriage: An order for maintenance can also be made in favor of children of the marriage who have attained the age of twenty-one years. The court is also empowered to make an order of maintenance in respect of children who have attained the age of twenty-one if there are special circumstances which justify the making of such an order for the benefit of the child. Section 70 (4) Matrimonial Causes Act.
Section 70 of the Matrimonial Causes Act does not lay down any particular fractional part of the combined resources of the parties as the entitlement of the party asking for maintenance. It only sets out what has to be considered before a court exercises its power in relation to award of maintenance. In the absence of any other rule, it has been suggested that the one-third rule should form the starting point for the calculation of the maintenance bearing in mind that it is neither a rule nor necessarily the final proportion to be awarded by the court.
The court is empowered under Section 72 of the Matrimonial Causes Act to order one party to settle any property or properties to which he or she is entitled on any or both parties to the marriage and the children of the marriage as the court considers what is just and equitable. The property to be settled must be owned by one or both of the parties. There is no restriction on the type of property which may be settled. It could be real or personal property but does not include payments of money by one spouse to the other. A partnership owned solely by both spouses is also property which may be settled. Oladele Kafi v. Eunice Kafi (1986) 3 NWLR (Pt. 1750 27.
The award of maintenance takes the form of payments which may be weekly, monthly or yearly payments or a lump sum award. Such award made must be for the maintenance of the beneficiary. Any award made for extraneous reason, no matter how inviting will be set aside. Okala v. Okala (1973) ECSLR 167.
The factors which the court takes into consideration in ordering lump sum payments are the following:
a. The ability of the husband or wife, where applicable, to pay such sum. The court will consider the financial state of the husband, particularly in terms of his capital assets.
b. Where there is evidence that an award of a lump sum will cripple the earning power of the husband, the court will not make it.
c. Where the husband is in good financial standing, the court will make the order as it will enable the wife invest the money and live on its proceeds.
d. The court will take into consideration the standard of living of the wife when she was with the husband.
e. It is proper to treat a wife as potentially entitled to some benefits from the husband’s capital asset.
Yes, an order of award of maintenance can be discharged by the court if the party in whose favor it was made marries again or if there is any just cause to do so. Section 73 (1) Matrimonial Causes Act, Sekoni v. Sekoni (1972) 10 CCHCJ 104.
The court in awarding maintenance takes many factors into consideration. These factors are:
a. Means of the parties: The means of the parties include capital assets like buildings and shares in a company with other assets like buildings and shares in a company with other assets. Means has been held to include income, property and financial resources of the party. Negbenebor v. Negbenebor (1971) 1 All NLR 210.
b. Earning capacity: This is the ability to generate income. The earning capacity of a spouse refers not only to what he or she in fact earns but the potential earning capacity if that spouse has suitable employment. Where a spouse is employed, the court will consider whether his income is commensurate with his actual potential earning capacity.
c. Conduct of the parties to the marriage: This is the conduct of the husband and wife towards each other, their children and the marriage itself can also affect the amount of maintenance awarded. The fact that a spouse is responsible for the breakdown of the marriage does not preclude the court from making an order for the maintenance in favor of that spouse.
An applicant in a proceeding for maintenance must provide the court with the following information:
a. The property, income and financial commitments of the applicant.
b. The capacity of claimant to earn income.
c. The property, income and financial commitments of the spouse of the claimant that are known to the claimant.
d. The capacity of the spouse of the claimant to earn income so far as the capacity is known to the applicant.
e. Any financial arrangement in operation between the claimant and the spouse of the claimant.
f. Any order of a court under which one of the parties to the marriage is liable to make payments to the other.
g. The ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.
Adoption is the legal process which permanently gives parental rights to adoptive parents. It is a legal procedure in which all parental responsibility is transferred to the adopters and this is authorized by an application before a competent court. Adoption is a way of providing new families for children who, for whatever reason, cannot be brought up by their biological parents.
In Nigeria, adoption may be either effected under statutory law or customary law. Under statutory adoption, adoption procedure differs from state to state and are governed by the various adoption laws of States. The court is the government office responsible for adoption in Nigeria.
Moslem law does not recognize adoption. What obtains is fostering and this involves giving parental care to a child who is not one’s biological child.
By Section 128 of the Child’s Right Act, the court shall not make an adoption order in respect of a child unless the parents of the child or, where there is no surviving parent, the guardian of the child consents to the adoption and in the case where the child is abandoned, neglected or persistently abused or ill-treated, and there are compelling reasons in the interest of the child why he should be adopted.
The categories of persons who may adopt are the following according to Section 129 of the Child’s Right Act are:
a. Married couples: A married couple who want to adopt must each have attained 25 years and there must be an order authorizing them jointly to adopt the child.
b. A married person, where consent to do so has been obtained from the other spouse.
c. A single person if he has attained 35 years provided that the child to be adopted is of the same sex as the person adopting.
By Section 131 of the Child’s Right Act, an adoption order shall not be made in respect of a child unless –
a. The applicant or, in the case of a joint application, one of them, is not less than twenty-five years old, and is at least twenty-one years older than the child.
b. The applicant, or in the case of a joint application, both or, at least, one of them and the child are resident in the same State.
c. The applicant has been resident or, in the case of a joint application, both of them have been resident in the State in which the application is made for a period of, at least, five years.
d. The applicant is a citizen or, in the case of a joint application, both applicants are citizens of Nigeria.
e. The child has been in the care of the applicant for a period of at least three consecutive months immediately preceding the date on which the order is made.
f. The applicant has, at least twelve months before the making of the order, informed the social welfare ministry or department/unit of the Ministry of the State in which he/she made the application, of his intention to adopt the child.
The consent of the following persons is required in an adoption process according to Section 132 (1) and (2) of the Child’s Right Act:
a. Consent of a spouse: Where a married person is the sole applicant for an adoption order, the court may, if it thinks fit, refuse to make the order if the consent of the spouse of the applicant to the making of the order is not first obtained.
b. Consent of a person other than the parent or relative: Where it appears to the court that a person other than the parent or relative of a child has any right or obligation in respect of the child under an order of the court or any agreement or under customary law, the court may, if it thinks fit, refuse to make the adoption order if the consent of that person is not first obtained.
c. Consent of the parent: In the case of a child who has been adopted previously, the child’s parents are the adoptive parents under the first order. In the case of an illegitimate child, the mother’s consent will be required. The court may dispense with parental consent where an application for an adoption order was made within one year of commencement of the adoption law.
Consent to an adoption order may be oral or documentary depending on what the law on adoption of a state prescribes. Any document signifying the consent of a person to an adoption must be in the prescribed form. In the Eastern part of Nigeria and Lagos State, consent to the making of an adoption order may be oral or documentary.
The court will dispense with the need for consent of a parent or guardian in the following cases:
a. The court may dispense with the need for consent if the parent or guardian concerned has not performed his natural or legal duties or is incapable of giving his consent or is acting unreasonably.
b. Where the parent or guardian cannot be found or is incapable of giving his agreement, the court will dispense with the need for consent.
c. Where the parent or guardian has abandoned or neglected the juvenile.
d. If the child has been ill-treated persistently and the rehabilitation of the child within his household is unlikely, the need for consent will be dispensed with. Section 136 Child’s Right Act.
The legal effect of an adoption order is that, it severs all parental rights and obligations between the child and his biological parents. It establishes a legal relationship between the adopted child and the adopter. The adopted child stands in relation to Mr. Okwulehie and his wife as a child born out of lawful wedlock. However, the adopted child cannot marry the daughter or son of his adoptive parents because the effect of the adoption order is to create a relationship between them. On the death intestate of any person occurring after the making of the adoption order, his property shall devolve as if the person were a lawful child of the adopter and any reference in a disposition of property made by instrument inter vivos or by will after the date of an adoption order to child or children of the adopter will include the adopted person.
Adoption may be carried out under customary law formally or informally. When adoption is done formally, it involves a series of requisite ceremony. Under some systems, a meeting of the families of both the prospective adopter and the infant to be adopted is held. At the meeting, a formal transfer of parental rights and obligations is carried out with the approval of both families. In other places, a meeting of the elders of the adopter’s family is held where the adopter announces his intention to adopt a person and thereby make him his heir. The formal consent of the family is obtained and ceremonies performed to initiate the person adopted into the family.
Informal adoption may take various forms. An instance is where a widowed or divorced woman may re-marry and with the consent of her new husband, bring her child from the former union into his household who will then be brought up by the step-father and whose name he may take. A person may also take the child of his deceased sibling into his household and the relationship may mature into adoption with the passage of time. In Akinwande v. Doqbo Unreported Suit No. AB/26/68 of the Abeokuta High Court, a petitioner took the child of his deceased sister into his household and the child lived with him over a long period of time in which the petitioner was responsible for the child’s upbringing. The court held that the child was adopted by the petitioner under customary law.
The effects of a customary law adoption are that the child adopted under customary law usually takes the name of his adopter and is regarded as his legitimate child. The adopted child succeeds along with the other legitimate children of the adopter to the latter’s property. Customary law adoption does not seem to affect a clear and permanent severance of the parental rights and obligations between the infant and his natural parents. He may succeed to property both in the family of his adopter and also in respect of his natural parents.
Guardianship has been defined as the fiduciary relationship between a guardian and a child or other incapacitated persons, whereby the guardian assumes the power to make decisions about the child’s person or property. The fiduciary relationship between the guardian and his ward is one based on trust. The guardian is one who has the legal authority and duty to care for another person or property especially because of the other’s infancy, incapacity or disability. Section 82, Child’s Right Act.
There are different types of guardians which may be appointed for the benefit of a minor. They include but are not limited to the following:
a. Testamentary guardian: A testamentary guardian is a guardian nominated by a parent’s will to protect the interest of the child until the latter reaches the age of majority.
b. Guardians appointed by the court: The High Court is vested with the statutory power to appoint guardians. On the death of a father, a mother will act as guardian of a child, either alone or jointly with any guardian appointed by the father. Where no guardian has been appointed or if the guardian or guardians so appointed are dead or refuse to act, the High Court may appoint a guardian or guardians to act jointly with the mother. The statutory powers of the High Court are unlimited when appointing guardians. The power may be exercised during the lifetime of a parent if the court is of the opinion that the parent has abandoned his responsibilities or is unfit to act. The court also exercises this power when the parents of an infant are dead and the infant is in need of care and protection.
c. Guardian ad litem: This is a guardian, usually a lawyer, appointed by the rules of court to appear in a lawsuit to protect the interest of the child. A person so appointed as guardian ad litem is a guardian only for the purpose of representing the child and his interest but does not have any parental responsibility for the child. Section 89 and Section 82(2) Childs Rights Act.
Under common law, there is no duty on a guardian to maintain the child except in respect of such property of the ward that come into the hands of the guardian. Therefore, the law imposes an obligation on guardians to ensure the physical and moral protection of children under their charge. Section 82 (2) Child’s Right Act. In respect of the ward’s property, the guardian has the duty to account to the ward for any property of the infant which has come into hands upon the termination of the guardianship.
If money is paid to the guardian for the maintenance of the ward, it is presumed that the money was properly expended unless an abuse is clearly proved. Martins v. Martins (1931) 10 NLR 92.
Guardianship may come to an end in a variety of ways. It may be by death, attainment of majority, marriage of ward and it could be by order of the court.
In the case of joint testamentary guardians, the death of one guardian vests the guardianship in the survivor. Guardianship is not terminated by the marriage of a male ward. In relation to the marriage of a female ward, the guardianship is not terminated where the guardian is appointed by the court.
A guardian whether appointed by the court or under a will, cannot resign his guardianship without the leave of court. The court may, on the application by a guardian, release him of the obligation if that is in the best interest of the child. The High Court that has the authority to remove a guardian whenever such a step will promote the welfare and interest of the ward. The removal may be due to the misconduct of the guardian or where he shows that he is unfit to discharge his functions.
Guardians may be appointed by the following persons under customary law:
a. By the father: A father during his lifetime is regarded as the natural guardian of his children. On his death, the right of guardianship devolves on the next in line and especially a person who is of age. Where a widow remarries, her new husband may act as the guardian of her children.
b. Appointment by the family: Customary law recognizes and gives effect to the close family ties which exist in a traditional society. Under customary law, it is considered that the best interest of the child is to be put under the guardianship of a blood relation and a conscious effort is therefore made to restrict the appointment of guardians to members of the extended family of the infant.
c. By the Head of the family: Where the surviving mother of an infant cannot undertake its care and protection due to infirmity or other causes, and in the case of an orphan, the head of the child’s extended family is the proper person to appoint as guardian for the infant.
d. By the customary court: The customary courts have the power to appoint guardians for infants. In the various enactments which deal with the powers of customary courts in this respect, it is expressly provided that in any matter relating to the guardianship of children, the interest and welfare of the child is of paramount consideration.
Under customary law, the death of a ward or the guardian will automatically determine the guardianship. Customary law does not prescribe any definite age for the termination of guardianship. It is believed that family ties endure longer under customary law. As a result, neither the attainment of the age of puberty nor marriage per se, can be said to terminate guardianship.
Legitimacy is the state of lawful birth in which a child is born into wedlock. In Nigeria, a child is legitimate if he or she was born in lawful wedlock in accordance with the Marriage Act, Customary law or Islamic law. Lawal v. Younan (1961) 1 All NLR 245.
Under strict customary laws however, the concept of paternity, marriage and legitimacy are not necessarily connected as a child can be regarded as legitimate even though the natural parents are not married to each other.
Any child born during a void marriage is illegitimate. Where a customary law marriage is contracted first before contracting a marriage in accordance with the Marriage Act, if the subsequent statutory marriage is void, the customary law marriage remains valid, and a child conceived or born after a statutory marriage will be legitimate at birth because of the subsumed customary law marriage. There is however no provision of Nigerian law whereby a child of a void statutory marriage may be regarded as legitimate.
At common law, a decree of nullity in respect of a voidable statutory marriage was retrospective thereby bastardizing the children. However, by Section 38 (1) of the Matrimonial Causes Act, a decree of nullity in respect of a voidable marriage is effective only from the date on which the decree becomes absolute.
A child born in lawful wedlock under common law is presumed legitimate until the contrary is proved. A child is considered legitimate under customary law if he was conceived or born during the subsistence of his mother’s valid marriage to his natural father. The rule applies regardless of whether his mother was a widow at the time of his inception or birth; so long as the marriage between his natural parents had not been legally dissolved.
Statutory Marriage: A child born during the continuance of a statutory marriage or within two hundred and eighty days after the dissolution of such marriage is presumed legitimate and either of the parents of such a child can testify to rebut this presumption. Section 148 Evidence Act, Egwunwoke v. Egwunwoke (1966) 2 All NLR 1. Customary law: Under customary law, a child born during the subsistence of a customary law marriage is presumed legitimate. Some systems of customary law presume a child legitimate at birth even though born after the dissolution of the marriage and re-payment of bride price.
A child born outside lawful wedlock is considered illegitimate. However, there is a process known as legitimization which is the way by which a child that is not born legitimate acquires legitimate status. An illegitimate child may be legitimated by acknowledgment despite the fact that the parents have never been married to each other. Taylor v. Taylor (1960) LLR 286.
To constitute acknowledgment, the act or conduct of the illegitimate child’s natural father must be such as to indicate or establish his acceptance of the child’s paternity. Mr. Nwamadi recognized the child born by Miss. Obianuju as his son all through his lifetime and provided for the boy though he was not married to the mother. He even organized naming ceremony after the child’s birth and told his own family and everyone that the child was his. By his actions and words, Mr. Nwamadi accepted the child’s paternity and they serve as acts of acknowledgment which bestow legitimacy on the child. The boy is legitimate and has the right to inherit his father’s property. Akerele v. Balogun (1964) LLR 90.
The effect of Mr. Nwamadi acknowledging the son born to him by Miss Obianuju is that it bestows legitimacy on the child. The child acquires the same status as if he had been born in lawful wedlock, that is, the act of acknowledgement makes the child legitimate from the time of his birth irrespective of the time acknowledgment was exercised. The child is entitled to participate in the distribution of the property of his father, Mr. Nwamadi. Young v. Young (1953) WACA 19.
The right of legitimization by acknowledgment is exclusively conferred on the natural father of an illegitimate child, personally attached to him and cannot be exercised by a third person on his behalf. Consequently, if on the father’s death, a relative or his family acknowledges the paternity of a child, the act will have no legal consequence. The mother of an illegitimate child has no corresponding right.
But it will be a different case where a relative of the biological father of the child, e. g. the grandfather, a blood brother of the child’s late biological father, etc. comes up to testify that child is the biological child of the man based on verifiable evidence establishing that the father of child confirmed that the child is his. The legitimization here will not be on the basis of words of the relation of the dead father of the child, but on the established evidence that biological father of the child confirmed that truth before his demise.
One of the problems of legitimization by acknowledgement under customary law is that the principle of legitimization it is not a general/universal rule in some states in Nigeria. Therefore, an applicant who must prove that the alleged custom recognizes acknowledgment must proof it by evidence. The court held that there was no evidence of legitimization by acknowledgement as being an applicable rule under Tiv and Ibo customary law in the cases of Shasie & Ors. V. Salako (1976) 1 NMLR 160 and Onwudinjo v. Onwudinjo (1957) 11 ERNLR 1, respectively. So, it is a matter of individual cases and their perculiarities.
Sufficient acknowledgement may take the form of an admission to someone, or an unequivocal act or conduct which indicates to third parties that the paternity of the child has been accepted and this must be done by the father of the illegitimate child in his lifetime. Acts such as the father bringing the child to live with him, taking of the child personal needs, education, etc. are acts capable of establishing acknowledgement of the paternity of a child by the father. Acknowledgement of paternity of a child by a man’s family or his relative after the death of the man has no legal consequence.
Illegitimate children born before any legal marriage may be acknowledged. Similarly, children born after such marriage has come to an end are capable of being legitimated by acknowledgment. Abisogun v. Abisogun (1963) 1 All NLR 237.
The view has been expressed by some judges that children born out of wedlock during the subsistence of a valid marriage cannot be legitimated by acknowledgment. Cole v. Akinyele (1960) 5 FSC 84. In this case, a man who married under the Act had an affair with another woman while his marriage to his wife was still subsisting. That illicit affair produced to children – one of them was born while the wife of the man was alive, and the second child was born some six weeks after the death of the man. The court in deciding the legality of the legitimization of the children by acknowledgement, held that the first of the two children that was born when the wife of the biological father of the child was alive, that is, during the continuance of the marriage could not be effective or legally accepted on the ground that it would be contrary to public policy of the sanctity of marriage for the biological father in his lifetime to confer the status of a legitimate child on that first child. Implicit in this decision is the point that the second child born six weeks after the death of the wife, that is, when the marriage was no longer subsisting, could be legitimized by acknowledgement.
Yes, the subsequent marriage of the parents after his birth in 2018 has effect on the status of the child. It changes his status as a child who was born outside lawful wedlock and whom is considered illegitimate, to that of a legitimate child. The legal effect of his parents’ subsequent marriage is that it bestows legitimacy on him.
By Section 3 of the Legitimacy Act, the legal effect of the subsequent marriage of the parents of an illegitimate child is that it makes the illegitimate child legitimate from the date of the marriage.