An Appraisal of the Application of Alternative Dispute Resolution Methods to Marriage Disputes
CHAPTER ONE
OBJECTIVES OF STUDY
The aims of this research are:
- to create an awareness that there are alternatives to litigation in resolving matrimonial disputes and
- to proffer relevant legal suggestions, (after analyzing how the alternatives work, their advantages and challenges facing them) that will enhance the effectiveness of the alternatives, in their application to matrimonial.
CHAPTER TWO
LITIGATION OF MARRIAGE DISPUTES UNDER NIGERIA
STATUTES
INTRODUCTION
To litigate means to settle a dispute or seek relief in a court of law.17 Litigation of marriage disputes does means filing a legal action to settle a matrimonial dispute or seek relief which may be divorce, separation e. t. c. in a court of law. Litigation of matrimonial disputes or causes is not a new practice in jurisdictions of the world. Under Nigeria jurisdiction, the law that makes provisions for matrimonial causes is the Matrimonial Causes Act, 197018 (herein referred to as the act). The provisions of the act, especially in respect of divorce, were modeled on the English Divorce Reform Act, 1969.
Matrimonial disputes/relief/causes, as stated by s. 114(1) (a)-(e) of the act, means proceedings for a decree of dissolution of marriage; nullity of marriage; judicial separation; restitution of conjugal rights; jactitation of marriage; proceedings with respect to maintenance of parties to the proceedings; custody or guardianship of children of the marriage or their maintenance e. t. c. The act divides these disputes/reliefs into two: principal (major) relief and ancillary relief.
LITIGATION OF MAJOR MARRIAGE DISPUTES
Litigation in major marriage disputes is what the act refers to as proceedings in principal relief. Principal relief, according to s. 75(4) of the act, means ‘relief of a kind referred to in (a)-(b) of the definition of ‘‘matrimonial cause’’ in s. 114(1) of this act.’ (a)-(b) of s. 114(1) of the act refers to proceedings for a decree of dissolution of marriage (divorce), nullity of marriage, judicial separation, restitution of conjugal rights and jactitation of marriage. It includes a proceeding for a declaration of the validity of dissolution, annulment or discharge of a decree of judicial separation.
For the purpose of this research, proceedings for divorce and judicial separation are much of concern. Proceedings for other reliefs will also be touched but to a limited extent.
LITIGATION IN DIUSSOLUTION OF MARRIAGE [DIVORCE]
As in the opinion of the writer, that marriages are not encouraged to be dissolved, the act provides that except where divorce proceedings are based on the facts of willful and persistent refusal to consummate; adultery or the commission of rape, sodomy and bestiality, no proceeding for divorce may be instituted within two years of marriage without leave of court.19 Such leave can only be granted on the ground that to refuse to grant such leave would impose exceptional hardship on the applicant or exceptional depravity on the part of the pther party to the marriage.20
However, what constitutes exceptional hardship and depravity cannot be pin- pointed. The construction of the above provision, especially the word ‘exceptional’, is essentially determined by the judge. It has been considered to be a matter of value judgment. In Akere v Akere21, where the leave for the institution of divorce was sought on ground of exceptional depravity on the part of respondent and exceptional hardship suffered by the applicant, the judge held that an allegation against the respondent, of committing adultery with three women; inordinate sexual demands from the applicant who was in ill-health and had just returned from the hospital; constant negligent and quarrelling with the applicant; infecting the applicant with venereal disease and turning the applicant out of his home all constituted exceptional hardship on the applicant and exceptional depravity on the part of the respondent. The leave for institution of divorce was thus granted.
CHAPTER THREE
APPLICATION OF ADR METHODS TO MARRIAGE DISPUTES
INTRODUCTION
The word alternative means something that can be used instead of something else.54 As earlier noted, there are some shortcomings found for adjudication in resolving marriage disputes and these shortcomings serve as propellers to finding substitutions. Ayinla L. A55 stated that the difficulties posed by litigation to the litigants in gaining access to justice, coupled with the overburdened courts with little facilities to attend to matters with the deserved alacrity; formalism, legalism and excessive costs, are some other factors that have led to the quest for alternatives to the traditional court system (litigation). Since the court process seems to be cruel, anachronistic and hypocritical56, there had to be a better way out.
Various alternatives have truly come up and are applied to issues ranging from business to matrimony. This chapter examines three alternatives/ADR methods which are collaborative divorce, divorce mediation and divorce arbitration.
COLLABORATIVE DIVORCE
Collaborative divorce (also called collaborative law, collaborative practice and collaborative family law) is a voluntary and facilitative family law process, enabling couples who have decided to end their marriage, to work with their lawyers and other family professionals, in order to achieve a settlement that best meets the specific needs of both parties and their children, thus, avoiding the uncertain outcome of the court. This process is initiated when couples voluntarily sign a contract (Participation Agreement) binding each other to the process and disqualifying their lawyers to represent either of them in any future family related litigation.
This alternative was created in 1990 by a Minnesota Family Lawyer, Stuart Webb,57 who saw that traditional litigation was not always helpful to parties and their families and was often damaging. Since 1990, the collaborative law movement has spread rapidly to most of the United States, Europe, Canada and Australia.
CHAPTER FOUR
CHALLENGES AND PROSPECTS OF APPLYING ADR TO MARRIAGE DISPUTE
INTRODUCTION
The fact that other methods of divorcing/separating, aside the court-room litigation exists, is no longer a new phenomenon because it is no longer hidden. This could be largely traced to the numerous advantages derived there from. It has come to stay and in fact currently in practice in quite a number of states. Quite a number of cases of effectiveness of these alternatives have been recorded. This does not however mean that the use of these methods/alternatives is devoid of challenge. The challenges serve as clogs on the effectiveness of the alternatives. Moreover, the little successes recorded show the likelihood of the alternatives becoming effective more than what is witnessed now.
CHALLENGES OF ADR
One of the challenges facing the use of these alternatives is the challenge of absence of rules guiding the ADR processes. Various family laws of jurisdictions where ADR is practiced merely recognize ADR process as an alternative to adjudication but fail to describe how the processes are to be conducted. There are no statutory regulations and the excuse given for this is that statutory regulations would destroy the flexible nature of ADR. It is the practitioners that come up with guidelines themselves. The so-called guidelines in use are not satisfactory enough and this makes the clients or parties to ADR processes frustrated. A quote from recent UK research on divorce mediation states: ‘Both Mr. and Mrs. Clifford found mediation helpful but the search for norms remained unsatisfied. Mrs. Clifford said, we were trying to find out what was the norm. We wanted guidance but they said as long as we were happy, it was alright. Mr. Clifford was searching for a norm concerning suitable property for bringing up the two children.’ So, it is really a question of looking for norms.
In addition, the flexibility of ADR (since it is not statutorily regulated), if not well checked, may lead to adverse consequences for parties86. For instance, in divorce arbitration, an arbitrator is not bound by the divorce laws of the judicial system, he or she can make whatever decision he or she deems best based on his or her own good judgment (which sometimes may not be the “good judgment” that the clients want).87 Arbitration’s final decision can be difficult to reverse. If the decision is unfair or illogical, the parties may be stuck with it because arbitration decisions are infrequently reviewed by the courts.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATION
CONCLUSION
Marriage, as defined by Lord Pezance, is a union for life between a man and a woman to the exclusion of others.113 This definition is in pari-material with statutory marriage which this research is concerned about. It has been pointed out that if marriage is as defined above and a social-religious institution tagged sacred, it should then not be wished to crumble or break down.
However, occurrences here and there have shown that some marriages, no matter how much they are guarded by parties to them, still reach the verge of irretrievable breakdown and as put by the Matrimonial Causes Act,114 divorce should be considered at such point. Divorce proceedings, when either of the parties petition for it, has overtime been found to be time wasting, adversarial, and costly. It was further pointed out in this research that divorce proceeding neglects the fact that parties’ emotions should be taken care of. Children are also negatively affected in such proceeding.
It has been stated that the consideration of reconciliation put in place in the proceeding, using the Nigeria Matrimonial Causes Act as a case study,115 cannot often be effective since it is considered when parties may have engaged in adversary.
As alternatives to litigation, the research examined collaborative divorce, divorce mediation and divorce arbitration which have been developed due to the shortcomings of litigation. It has been stated that these alternatives are all voluntary processes which parties to divorce proceeding may opt for at any point of the proceeding. The use of these alternatives/ADR methods has advantages litigation. The advantages, as stated in this research are: voluntariness, flexibility, low cost, time saving, good emotional health of parties and their children, smooth future relationship, confidentiality and the use of experts.
The research further went ahead to identify various challenges facing the use of the alternatives examined. These amongst others include absence of norms, unguarded flexibility, inadequate skills, lack of enforcement, criticisms based on moral grounds, inappropriateness in some cases and parties’ negative responses.
Despite the challenges, the research found out that there is a likelihood of the use of ADR becoming better than the way it is presently. This is envisaged due to some successes and growth recorded in the few jurisdictions considered.
However, it has been observed that out of the five jurisdictions considered in relation to the use of the alternative methods examined, it is only Nigeria that is still lacking behind. It has been stated that none of these alternatives is statutorily recognized nor are there formal training programs for them. The only thing in place that is statutorily recognized as ADR method in relation to resolving marriage disputes is reconciliation.116 It has been further stated that the condition wherein this reconciliation is sought to be effected is not conducive enough for it to be successful.
Having considered all the above, the following recommendations, first, in relation to Nigeria and subsequently in relation to other jurisdictions, are therefore put forward.
RECOMMENDATION
Legal practitioners may not be ignorant of the existence of these alternative methods but what about the populace? Ignorance is one of the challenges noted to be facing ADR in resolving marriage disputes as a lot of people are not aware that there exist, other means of resolving marriage disputes aside litigation. To this end, it is recommended that there be a highly recognized level of public awareness in various jurisdictions, especially Nigeria, where the level of recognition of ADR is low. This can be done by organizing various seminars for the public by Bar Associations at various levels. The media can equally be made use of.
In Nigeria, reconciliation is statutorily recognized117 and it is being regarded as an ADR process.118 It could be said to be very close to divorce mediation which is presently not in operation in the country. But the process of reconciling parties takes place under what has been referred to as ‘shadow of the law’119 and this is because the court environment is hostile and not conducive for meaningful reconciliation. However, it is recommended that reconciliation be made as an alternative to litigation in its real sense and not be ordered where litigation has already begun/at the middle of litigation where parties would have become estranged towards each other. This recommendation is to help in holding marriages that may have broken down irretrievably together again in a very easy manner. It is envisaged that when reconciliation is treated as such in Nigeria, it will attract parties with disputes in their marriages which may be at the verge of divorce no matter how irretrievably their marriages may have broken down. This is because no one wishes for the ‘burial’ of his/her marriage.
This approach should equally be applied to other ADR methods that have been examined in jurisdictions where they are already being made use of. That is, parties should have the option of either going to court to litigate their dispute or opting for any of the ADR methods and not that the ADR methods be introduced or agreed upon by parties after litigation might have started. This will ensure an easy and effective settlement of dispute since parties would not have been engaged in court-room adversary. This approach will equally solve the challenge of negative response of parties.
If reconciliation is statutorily recognized in Nigeria as ADR method for resolving marriage disputes, then other methods should equally be introduced, at least, for trial. If they are introduced, the above approach (making them independent) should be employed for their application.
Closely related to the above recommendation is the training and enlightenment of legal practitioners and potential divorce mediators and divorce arbitrators under statutorily recognized institutions. Training of this set of persons under recognized and respected agencies and institutions (governmental) will erase the challenge of unskilled ADR personnel. In the same vein, ADR generally should be introduced in the curriculum of legal studies in such a way that the whole lot of it would be covered if it is started from the scratch level to the ultimate level of legal studies. By the time any law student finishes his/her legal studies; he/she should have become so vast in the understanding and use of ADR while persons other than law students should be given the opportunity to attend the statutorily recognized institutions. This recommendation will serve dual purposes which are: increment in number of ADR professionals and satisfaction of clients.
Also, for divorce arbitration, there should be a check on the powers and authority of the arbitrator so that the flexibility of the process may not be abused. When the consciousness of check lies in an arbitrator, he performs his duty with utmost good faith and parties can be rest assured that their cause will be dealt with in all truthfulness devoid of favouritism.
Moreover, rules and guidelines regulating the ADR processes should be statutorily put in place as against the ones being put in place by various associations of legal practitioners like The Model Family Law Arbitration Act120 in USA which was created by the American Academy of Matrimonial Lawyers to provide guidelines for arbitrators conducting hearings regarding family law matters. The statutory regulation should be such that can be reviewed from time to United State of America Model Uniform Arbitration Act, 2003 time so as not to destroy the flexible nature of ADR which is one of its advantages.
In conclusion, the researcher is of the view that ADR is a better method of resolving marriage disputes when compared to litigation and therefore gives the above recommendations to make ADR the better option it is meant to be.
REFERENCES
- Ayinla L. A, ‘ADR and the Relevance of Native/Customary Arbitration in Nigeria (Africa): A Critique of Its Nature and Allied Legal Issues’ (2009) vol. 14, The Jurist, An Annual Publication of Law Students Society, Unilorin. P 253
- Azinge E., ‘Settlement of Disputes: An Appraisal of Alternatives to Adjudication in Matrimonial, Chieftaincy and Land Disputes’, May- June (1993) vol. 4 No. 3. A Journal of Contemporary Legal Problem. P 58-59
- Benjamin M. and Irving, H. H., ‘Research in Family Mediation, Review and Implications,’ (1995) 13(1) Mediation Quarterly, 53-82, at 57
- Fischer K., Vidmar N. and Ellis R., ‘The Culture of Battering and the Role of Mediation in Domestic Violence Cases’ (1993) vol. 46(5) SMU Law Review p
- Ijaiya H., ‘Alternatives to Adjudication in Settlement of Matrimonial Disputes’ (2004) vol. 1 No. 5 UDUSLJ. P 74-93
- Irving, H. H. & Benjamin, M., ‘An Evaluation of Process and Outcome in a Private Family Mediation Service.’ (1992) 10(11), Mediation Quarterly p 35-55