Dissolution of Marriage and Child Custody Under Nigerian Law
Chapter One
Objective of the study
The objectives of the study are;
- To ascertain the whether court have influence in the custody of the child after dissolution of marriage
- To find out the law that govern the child after marriage dissolution.
CHAPTER TWO
LITERATURE REVIEW
Conceptual frame work
Customary Law
There has been an avalanche of definitions of the term customary law by a host of legal writers, scholars and Jurists. Perhaps, one of the most popular definitions out of the definition pool is the time worn and cerebral dictum of AndrewObaseki JSC (as he then was) in the landmark case of Oyewunmi v. Ogunesan . According to His Lordship in this case: Customary law is the organic or living law of the indigenous people in Nigeria, regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it. Under the customary Court Law of Abia State,4 customary law is defined to as: ‘A rule or body of customary rules relating to rights & imposing correlative duties being customary rule or body of customary rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause or matter, dispute or questions.’ Along the same stream of thought, the Nigerian Supreme court in the case of Zaiden v Mohssen5 defined customary law as: ‘‘Any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway
Marriages
The concept and institution of Marriage is historically as old as mankind. Traceable by Some theologians to the biblical matching order: ‘therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh’ 6 According to the Encyclopaedia Britannica7 ,‘‘Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs and attitudes that prescribe the rights and duties of the partners and accord status to their offspring( if any)’’. This general definition of marriage clearly takes cognisance of the prevailing legal regime now popular in somejurisdictions of expanding the traditional definition of marriage to include same sex marriage. But this issue is outside the purview of this paper and needs be left for another day.
Dissolution
Black’s Law Dictionary8 defines Dissolution as,‘‘the act of bringing to an end; termination. It is the cancellation or abrogation of a contract, with the effect of annulling the contracts binding force and restoring the parties to their original positions…” In relation to marriage, dissolution is the end point of a failed marriage irrespective of the form of marriage entered into by the parties. The pursuit of dissolution of marriage and custody of children drags with it a host of other legal handbags. Some of these include the rights and obligations of the parties, the mode of dissolution, procedure, incidence and even venue for contestation of the divorce and custody proceedings.Generally, dissolution of marriage under customary law is perceived as easier, less cumbersome, technical and protracted than say for example, statutory marriages.
CHAPTER THREE
RESEARCH METHODOLOGY
INTRODUCTION
In this chapter, we described the research procedure for this study. A research methodology is a research process adopted or employed to systematically and scientifically present the results of a study to the research audience viz. a vis, the study beneficiaries.
RESEARCH DESIGN
Research designs are perceived to be an overall strategy adopted by the researcher whereby different components of the study are integrated in a logical manner to effectively address a research problem. In this study, the researcher employed the survey research design. This is due to the nature of the study whereby the opinion and views of people are sampled. According to Singleton & Straits, (2009), Survey research can use quantitative research strategies (e.g., using questionnaires with numerically rated items), qualitative research strategies (e.g., using open-ended questions), or both strategies (i.e., mixed methods). As it is often used to describe and explore human behaviour, surveys are therefore frequently used in social and psychological research.
POPULATION OF THE STUDY
According to Udoyen (2019), a study population is a group of elements or individuals as the case may be, who share similar characteristics. These similar features can include location, gender, age, sex or specific interest. The emphasis on study population is that it constitutes of individuals or elements that are homogeneous in description.
This study was carried to examine dissolution of marriage and child custody under Nigeria law. Staff of human right commission form the population of the study.
CHAPTER FOUR
DATA PRESENTATION AND ANALYSIS
INTRODUCTION
This chapter presents the analysis of data derived through the questionnaire and key informant interview administered on the respondents in the study area. The analysis and interpretation were derived from the findings of the study. The data analysis depicts the simple frequency and percentage of the respondents as well as interpretation of the information gathered. A total of eighty (80) questionnaires were administered to respondents of which only seventy-seven (77) were returned and validated. This was due to irregular, incomplete and inappropriate responses to some questionnaire. For this study a total of 77 was validated for the analysis.
CHAPTER FIVE
SUMMARY, CONCLUSION AND RECOMMENDATION
Introduction
It is important to ascertain that the objective of this study was to ascertain dissolution of marriage and child custody under Nigeria law. In the preceding chapter, the relevant data collected for this study were presented, critically analyzed and appropriate interpretation given. In this chapter, certain recommendations made which in the opinion of the researcher will be of benefits in addressing the challenges of dissolution of marriage and child custody under Nigeria law
Summary
This study was on dissolution of marriage and child custody under Nigeria law. Two objectives were raised which included: To ascertain the whether court have influence in the custody of the child after dissolution of marriage and to find out the law that govern the child after marriage dissolution. The study adopted a survey research design and conveniently enrolled 80 participants in the study. A total of 77 responses were received and validated from the enrolled participants where all respondents were drawn from staffs of human right commission. Hypothesis was tested using Chi-Square statistical tool (SPSS).
Conclusion
From the above discourse, we have seen that the legal principles governing dissolution customary marriages and custody of children under customary law and under statutory marriages conducted under the Act are significantly similar and well developed. Where differences exist, there have been statutory interventions. These statutory interventions are, for instance, evident in the provisions of the Marriage, Divorce, and Custody of Children Adoptive Bye laws 1958 and the Customary Courts Laws of the many states in Nigeria where customary courts exist. As a result of this, customary marriages and customary courts conferred with unlimited jurisdictions over matrimonial causes and matters have become increasingly popular and protective of women and children’s rights. At the same time, unlike in the past, the principles guiding these aspects of customary marriages examined in this paper have become well defined and equitable. This has effectively laid to rest the bias of superiority of statutory marriages over customary marriages generally and in the area of divorce and custody of children in particular.
Recommendation
Couple should avoid anything that will cause their separation for the sake of their children
Couple should know themselves very well before marriage to avoid divorce.
References
- Aguda A; Selected Law Lectures and papers (Associated publishers, Nigeria Ltd, Ibadan) 67
- Ajibola J.O. Administration of Justice in the Customary Courts of Yoruba land (1st Edition Ibadan. University press Limited, 1982) 35
- Anyafulude, T. ‘Principles of Practice and Procedure of Customary Courts in Nigeria through the cases (1st Edition, Enugu: Mercele Press Nig. 2012) 297
- Anyebe A.P. Customary Law: the war without Arms (1st ed. Enugu: fourth Dimension publishing Co. Ltd, 1985) 92 Chambers, 21st Century Dictionary (Revised edition, Edinburg chambers
- Harrap publishers Ltd, 2004) 174 Customary Court Law 1997 of Delta State 24 Customary Court Law 1998 of Abia state Customary Courts Law 1984 of defunct Bendel State Customary Marriage (Special Provisions) Law Cap 33 laws of Enugu State 2004 Garner B A, Black’s Law Dictionary Ninth Edition, (Texas, Law Prose Inc. 2009) 541 The Holy bible (kjv)
- Izunwa, M.O. ‘A critique of certain Aspects of the grounds procedure and reliefs attaching to Customary Divorce Law in Southern Nigeria, available at www.acedemicJournals.Org accessed on 5/6/017 at 12.15pm
- Lord Denning, The Due process of law (south Asia Edition, New York, Oxford University press, 1980) 224 Marriage Act cap m6 LFN 2004
- Onyemenam U; ‘Law Practice and Procedure Relating to Marriage, Divorce and custody of children under customary law in Nigeria, being a paper delivered at the 2006 All Nigeria judges of the lower courts’ conference, Asaba Delta State, 29 The Interpretation Act cap.123 LFN 2004.
