Dissolution Of Marriage; Problems And Prospects

Project and Seminar Material for Law

Dissolution Of Marriage; Problems And Prospects


Abstract


The decree of dissolution of marriage which is defined as the legal separation o f man and wife effected by the judgement or decree of a court, and either totally dissolving the marriage relation, or suspending its effect so far as it concerns the cohabitation of the parties. Dissolution of marriage seems to be on the increase these days, this is due to the fact that people rushed into ill-advised marriages and they decided to rush out of these marriages as soon as they discovered that their marriages are not what they expected.

Therefore, no proceedings for dissolution may be instituted within two years of marriage without leave of court except where divorce proceedings are based on the facts of wilful and persistent refusal to consummate, adultery or the commission of rape, sodomy or bestiality. The subject matter of this research is to examine the nature and the conditions for dissolution of marriage, the likely problems that tend to follow and prospects. However, the study will further discuss the various types of marriage, validity of customary marriage and statutory marriage, capacity and formalities of marriage. In carrying out this research, emphasis will be laid on the various grounds for dissolving statutory marriage under the Matrimonial Causes Decree and the Marriage Act 1970 and customary marriage under the customary law.

Also, the differences between dissolution of customary marriage and statutory marriage. But, it should be noted that, it is not the intention of the researcher to see that marriages which are ordained by God and which were hitherto, build on mutual trust and confidence between the parties and their families go asunder. But rather, to discourage spouses on dissolution of their marriages by providing a lasting solution to this, in order for us to have a better society and also to consider the pathetic effect of such on the society, children and family.


Chapter One


General Introduction

1.0.0: Introduction

It is universally accepted that, marriage is the union between a man and a woman. Marriage is a universal institution, which is recognised and respected all over the world. Therefore, marriage is a contract whereby the parties enter into a legal relationship involving rights and obligations. As a social institution, marriage is governed by the social, religious and legal norms of the society. Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

The domestic relation laws of most states and particularly of the state of New York define marriage as ‘a civil contract to which the consent of the parties is essential…’

Unlike most European countries, two systems of marriage are recognised in Nigeria- the monogamous and polygamous systems. These two systems differ fundamentally in character and incidents. Based on this, in every case concerning marriage, the lawyers has in the first instance to determine the type of marriage involved in order to enable him apply the appropriate law to determine the incidents.

A monogamous marriage in Nigeria is the same as in England. It is the marriage which Lord Penzance in Hyde v Hyde described as ‘…..the voluntary union for life of one man and woman to the exclusion of all others’.

A polygamous marriage may be defined as a voluntary union for life of one man with one or several wives. Its essential characteristic is the capacity of the man to take as many wives as he pleases. The character and the incidents of the system are governed by customary law.

This essay therefore, is set to examine the problems of dissolution of marriage and providing a solution to it. It is of paramount importance to shed light to this. Dissolution of marriage is the breaking up of a union.

Dissolution of marriage has its unpleasant impact, not only on the couple and their children but also on the society as a whole. Children of divorced marriage are usually the black sheep in a family set up and in the society as a whole. If, we should consider the resources the government expends in curtailing social problems in the society, then one should endeavour to proffer solution on one of the problems that actually precipitates social problems in our society.

However, dissolution of marriage has its great implication; it causes great emotional stress to the couples, their children and relations. It also has its great socio and economic problems to the nation. Most of these children develop psychological problems or even health problem. Such children may eventually become criminals due to lack of parental care as a result of the broken home syndrome.

Children are the future of a nation. They deserve proper care. They need proper education and attention. They need good health and emotional stability. They need to be taught patriotism, self discipline and good deed. Stability in the home can only ensure all the above. Where this is lacking, a child will be denied all the above and this will not augur well for the stability of our society and the future of our nation may be put in jeopardy. How will the future of a nation be where its future leaders are emotionally traumatised as a result of the dissolution of their parents’ marriage


1.1.0: Background To The Study

Marriage has been defined as the civil status condition or relation of one man and one woman united in law, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

However, dissolution of marriage is the legal separation of man and wife, effected by judgement or decree of a court, and either totally dissolving the marriage relation or suspending its effect so far as it concerns the cohabitation of parties.

The study is concerned with the problems of dissolution of marriage and likely solutions. As it will be pointed out later, there are different types of marriage.

One is statutory while the other ones are customary and Islamic in nature and they differ fundamentally in character and incidents.

Dissolving or bringing to an end a statutory marriage ought not to give room to any controversy as such because the grounds for dissolution of man are well spelt out by the statute. It should be noted that at the time of dissolving a marriage, the legal system, and the parties, can use the occasion to survey the history of the marriage, to weigh and evaluate the contribution made to it by each spouse and to arrive at a final balance sheet. Instead of abrupt termination without legal process, which may cause some detriment to either of the party?


1.2.0: Objectives Of Study

The major objectives of this long essay are as follows:

  1. To provide enlightenment to intending couples on how to ensure stability in marriage.
  2. To encourage good harmonious relationship not only among intending couples but also among married persons.
  3. To redirect the attention of parents to the need to consider the well being of their children instead of seeking for divorce.
  4. To draw attention to the social and economic problems children of divorced couples pose for a nation.
  5. To let all and sundry be aware of the evil of dissolution of marriage and the need to avoid it at all cost.
  6. To call attention to the need for a review and harmonisation of the various laws on marriages and dissolution in Nigeria.

1.3.0: Focus Of Study

The focus of this essay is on the problems of dissolution of marriage, how it affects not only the parties but also the children and the society at large. Thereafter, provide a lasting solution to it.

The researcher tends to focus on the causes of divorce, the problems it conceive or entails. The effect on the parties, which in some cases often result to emotional and psychological breakdown. This essay also focuses on how dissolution of marriage affects the children and the society.


1.4.0: Scope Of Study

This essay is based on dissolution of marriage: problems and prospects, particularly under the Act and customary law. We shall examine both the customary and statutory dissolution of marriage alongside with their grounds.

There is a considerable difference between dissolution of marriage celebrated under the customary law and that contracted under the Acts.

Dissolution of marriage is the legal separation of man and wife, effected by judgement or decree of a court, and either totally dissolving the marriage relation or suspending its effect so far as it concerns the cohabitation of parties.

Dissolution of marriage can only result from the order of a judge or magistrate. The order is sometimes called a decree of dissolution of marriage. The matter comes before a judge on the filing of a petition for dissolution, as it’s called in most states and after the parties has agreed to terms for dividing their property.

However, it is pertinent to note that, our concentration is on the problems of dissolution of marriage and providing a lasting solution to these problems.


1.5.0: Methodology

The study will rely on primary and secondary sources of information. The primary sources will include the various statutory enactments directly and indirectly relating to trust in Nigeria.

The secondary sources will include text books, reports, articles and journal, and other relevant materials.

The work will be subjected to content analysis.


1.6.0: Literature Review

This study undertakes a fresh and contemporary study of dissolution of marriage: problems and prospects. This study will take a comprehensive approach on the subject.

According to Edvard Westermarck defined marriage as a more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of the offspring. He rejected his earlier definition, instead provisionally defining marriage as a relation of one or more men to one or more women that is recognised by custom or law.

Margaret C. Onokah submitted that, dissolution of marriage under customary law can be obtained extra judicially while a statutory marriage can be dissolved in a court having jurisdiction under the MCA 1970.
Grant Thomton in an annual study in the United Kingdom, estimates the main proximal causes of dissolution of marriage based on surveys of matrimonial lawyers and they are; extra-marital affairs, emotional or physical abuse, midlife crisis, addictions e.g. alcoholism and gambling, workaholism.


1.7.0: Definition Of Terms

Marriage

Marriage is a universal institution which is recognised and respected all over the world. As a social institution, marriage is founded on, and governed by the social and religious norms of society.

Monogamous Marriage

In Nigeria, monogamous marriage is the same as in England. It is the voluntary union for life of one man and one woman to the exclusion of all others.

Polygamous Marriage

It may be defined as a voluntary union for life of one man with one or several wives. Its essential characteristic is the capacity of the man to take as many wives as he pleases.

Volenti Non Fit Injuria

No injury is done to a person who is willing. That is, to the consenting no injury is done.

Animus Deserendi

Bringing cohabitation to an end.

Quoadhunc

A person who seeks to know all latest new or gossip, that is implying someone constantly asking what is new.


1.8.0: Conclusion

It is of importance to note that in finding a solution to dissolution of marriage, the rate at which parent will intervene in their children’s marriage should be reduced, the age of marriage should be reduced, the age of marriage should also be increased. The theme of this essay is therefore geared towards the real route of the problems of dissolution of marriage, its causes, effects and likely solution that can control it.


Chapter Five


Conclusion And Recommendation

5.0.0: Conclusion

Marriage is seen as involving a commitment to permanency. It has also been defined as the civil status condition or relation of one man and one woman united in law, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

Curzon L.B. defined dissolution of marriage as the formal voluntary ending of a marriage by granting of a decree of dissolution of that marriage on the petition of either party thereto, in a manner which allows the party to remarry.

The law governing dissolution of marriage under the English Common Law is contained in MCA 1973 as amended. Section 15(2) of this Act lists the grounds under which a marriage can be dissolved and they are:

  1. That the respondent has wilfully and persistently refused to consummate the marriage;
  2. That since the marriage the respondent has committed adultery and the petitioner find it intolerable to live with the respondent;
  3. That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent ;
  4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
  5. That the parties to marriage have lived apart from continuous period of at least two years immediately proceedings the presentation of the petition and the respondent does not object to a decree being granted;
  6. That the parties of the marriage; have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
  7. 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 this Act;
  8. 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.

Despite all the grounds for dissolution of marriage listed above, dissolution of marriage remains for most adults a severely traumatic experience. Demographic data suggested that divorce occur as a result of the association between pre-marital pregnancy and proneness to separation and divorce: age factor, lower educational attainment and childlessness of the union. It seems unassailable that changed expectations and improved economic position and social mobility of women have promoted dissolution of marriage.

It has been said that the future of the country depends on the way in which children are brought up. They are best brought up in the happiness and security of a sound family life. This in turn rest on the maintenance of the institution of marriage . Thus, it must be noted that more than a quarter of divorces children are more involved.

They become tools or weapons of fight against each other. The issue of juvenile delinquency is a serious one; most studies of these delinquent youths reveal that a majority of them are products of broken homes.

This long essay discussed the problems of dissolution of marriage which came to being as result of the causes of divorce. It has been discovered that parental influence and intervention in their wards’ marriage usually lead to the dissolution of such marriage. It has become a common thing for parents to be arranging marriage for their ward even before they are born. The role of parents should be advisory. It has also been discovered that the causes of divorce are people’s maturity, status, different educational background, different orientation and religion.

This long essay focused on the concepts of marriage, the various forms of marriage which include customary marriage and statutory marriage even though the two forms have crossed upon each other. It also focused on the grounds for divorce which has been stated above, the problems faced by the party, the children and the society after the dissolution of marriage and the possible prospects for divorce.


5.1.0: Recommendation

This essay goes on to recommend that the guide line in Sec 25 (1) of the MCA should be revised to give greater emphasis:

  1. To the provision of adequate financial support for children which should be an over-riding priority; and
  2. To the importance of each party doing everything possible to become self-sufficient.

The latter should be formulated in term of positive principle and weight should be given to view that, in appropriate cases, periodical financial provision should be primarily concerned to secure a smooth transmission with the status of marriage to the status of independence.

One other specific recommendation made is that no law should be so lax as to lessen the regard for the sanctity of marriage. The law should be based on understandable and respected principles; it should not be thought hypocritical.

It should facilitate reconciliation between estranged spouses. It should be fair to others affected, such as the wife and children. Even the law should encourage harmonious relationships between the parties and their children after the divorce by taking the heat out of the divorce proceedings.

The only ground for dissolution of marriage was adultery. Connivance, condonation and collusion were absolute bars to the grant of a decree. The petitioner’s own adultery, delay, cruelty, desertion or conducts conducing to adultery were discretionary bars. Adultery has remained a prerequisite to divorce. The reasons for this stress on physical infidelity were:

  1. The historical precedent of the private divorce Acts, for which the justification was originally to prevent illegitimate children being foisted on the unhappy husband whose bed had been violated,
  2. Scriptural justification for dissolution of marriage were usually based on adultery,
  3. Awife’s adultery was totally inconsistent with the continuance of the marriage, and could not be forgiven.

It was possible for a husband to be pardoned by his wife for committing adultery but the opposite is the case for the husband. Thus, adultery as a ground for divorce should be strike-out.

The law that governs separation of property after the dissolution of marriage must be fair and certain. The state should not interfere in the relations between spouses by imposing automatic rules regulating their property rights. Fixed property rights would determine and compel people to take advice before marrying.

There should be a reform of the basis of divorce. There are two essential features of a reformed law on divorce:

  1. The concept of the matrimonial offence must be eliminated, together with other elements which imply the existence of a contest.
  2. Though irretrievable break down itself should remain the sole ground for dissolution of marriage, it should be proved by a clear objective test. This will be a great step towards humane and realistic divorce.

It has also been expressed that the competitive and adversarial elements should be removed as far as practicable from matrimonial proceedings. There should be no winner and no loser. We therefore recommend that the form of decree of divorce should be redesigned so as to eliminate any implication of its having been awarded to one spouse and against the other. It should simply record the dissolution of the marriage.

It is therefore recommended as follows:

  1. The guideline in Sec25 (1) of the MCA should revised to give greater emphasis to the provision of adequate financial support for children which should be an over-riding priority.
  2. No law should be so lax as to lessen the regard for the sanctity of marriage; the law should be based on understandable and respected principles and not hypocritical.
  3. The law that governs separation of property after dissolution of marriage should be fair and certain. No state interference in the relations between spouses by imposing automatic rules regulating their property rights.
  4. Though irretrievable breakdown itself should remain the sole ground for dissolution of marriage, it should be proved by a clear objective test.
  5. Competitive and adversarial elements should be removed as far as practicable from matrimonial proceedings. There should be no winner or loser.
  6. The form of decree of dissolution should be redesigned so as to eliminate any implication of its having been awarded to one spouse and again the other. It should simply record the dissolution of the marriage.

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