Welcome to part 2 of how to get a divorce under Customary Law. Read part one here http://www.citypeopleonline. com/go-getting-divorcehow-go- getting-divorce.
In part one, we discussed the failing Marriage of Boro and Binta. Can Binta based on the severe beatings she constantly receives divorce Boro her Husband? How does she go about it?
Let’s examine what the law says by stating the grounds under which a person can leave their marriage. The first thing to note is that as a general rule, there is so much freedom in leaving a customary marriage that has failed.
So, when can we say a customary law marriage has failed? The answer is very simple – when any of the parties to the marriage usually the husband (yep, an unfair rule of thumb) is fed up with the marriage for whatever reason imaginable.
The above is one of the major defects of a Customary law divorce, to cure this defect (the defect of someone waking up one morning and deciding he is no interested), some States in Nigeria have codified (arrange laws in a system for people to follow) the grounds for dissolving a Marriage under Customary Law
Grounds for Dissolution of Customary Marriages: Like we discussed earlier, dissolution of customary marriage whether judicial or non-judicial generally does not require any reason to be given by the party seeking dissolution. Therefore, a lot depends on the superior native custom and practice of the area in question as there is no uniformity in native laws/customs and practice.
Now let’s check out some grounds for dissolution common to many communities in Nigeria. You can read more on this in the “Marriage Divorce and Custody of Children Adoptive by-laws” (used in Ogun, Oyo, Ondo and Defunct Bendel State (now Edo and Delta States)
(1) Ill-treatment, cruelty or neglect of either party by the other: Binta can use this ground if she married Boro ONLY under Customary Law;
(2) Failure, refusal or inability to consummate the marriage by either party;
(3) Betrothal under marriageable age;
(4) Lack of respect (LOL), fetish practices or witchcraft;
(5) Harmful diseases of a permanent nature which may impair the fertility of a woman or the virility of a man;
(6) Veneral disease contracted by either party;
(7) Impotency of the husband or the sterility of the wife
(8) Insanity of either party for three years or more;
(9) Leprosy or other life-threatening diseases; and
(10) Conviction of either party for a crime involving a sentence of imprisonment of five years.
The above are instances where the Courts have ruled that the marriages be dissolved.
In the case of non-judicial divorce, a customary law marriage will be considered dissolved when the bride price is returned or refunded to the husband. Returning the bride price is very critical in the customary divorce procedure. Once, the bride price is returned by either the father of the bride or any member of the bride’s family, a customary law marriage is considered dissolved.
Please note that the Court must make an order asking the Bride’s family to refund the bride price and the Man or his Family must either accept or renounce it. Any order of Court in the case of a judicial divorce dissolving a marriage that does not do this is meaningless, this was the case in Eze v Omeke.
Like we discussed earlier, such renunciation must be done formally. In some customs, the refund of bride price does not even take effect until the wife remarries. This custom is common among the Igbos, South East Nigeria.
RELIEFS GRANTED UNDER CUSTOMARY DIVORCE
Once a customary marriage crystalizes in divorce, some reliefs usually come with it. Please note however that the type of divorce procedure (judicial or non-judicial) will determine which reliefs are possible, which are available and which are applicable.
Where a couple decide to divorce via judicial customary divorce, the Courts will due usually look at how long the marriage was i.e. duration, how the couple conducted themselves during the marriage (LOL) and the sexes of the children born of the marriage.
The reliefs we refer to above can come in the form of court orders, where such order is disobeyed the offender may be committed for Contempt of Court. Where the divorce procedure is non-judicial and unilateral, these reliefs sadly may not be available, at least as a rule binding on parties.
Typically under Customary Law Divorce, the Husband is granted the Custody of the Children, It is irrelevant that the woman maybe rich enough, healthy and comparatively better placed to care for her children .infact there is a proviso in section which states that no order for divorce shall be made in respect of an application made by a wife who is nursing a child under three years of age or who has three children or more by the husband unless the court is satisfied that there are special grounds for making the order.
It is humbly submitted that this relief among other needs to be urgently revisited in order to do justice to all concerned because one thing is certain the welfare of the child or children in question in statutory custody cases is not a necessary or even important issue for consideration in customary divorce.
WHAT HAPPENS TO PROPERTIES JOINTLY HELD BY THE PARTIES:
Where a couple who own properties jointly divorce, settlement of such joint property is in theory a relief available under customary divorce law. The truth is that in reality, this is non-existent. Therefore, a wife undergoing a customary law divorce may find it difficult to establish “lawfully” that anything belonged to her.
In fairness to many men, they would usually allow their divorced wives to take with them some personal effects and clothes etc. that they came into the marriage with. Some others even extend this ‘goodwill” to include those properties given to the wife by her beloved family by way of settlement (idu uno) when she got married.
This include assets which were acquired either as a single lady or jointly with the Husband, they are usually conceded to the woman only by the man’s “charity”. In this way settlement of property under the customary law becomes a discretionary relief to be granted by the man as he pleases.
This is mainly because within the Southern part of Nigeria, especially among the Igbo, wives are strictly considered as among the properties/ possessions of the husband. And as such, whatever the wife may claim to have acquired in terms of property are in stricto sensu (in its strict sense) the husband’s property by extension.
DISSOLUTION OF CUSTOMARY MARRIAGE BY DEATH
A Customary law marriage may be dissolved by the death of a wife However, where it is the husband that dies, this may not be the case.
Justice U. Onyemenam of the Court of Appeal, Jos Judicial Division, is of the view, that where a husband dies, the widow has the following options:
(i) She can remain in the late husband’s family house as his wife. Any child she bears during such period is deemed a legitimate child of the deceased husband. This is often described as “Ghost marriage”. In some parts of Igbo land, such a child may be named, “Azunna”.
(ii) She may choose to remarry a member of her late husband’s family, except her own son.
This, they say is done to ensure the continued maintenance of the widow.
(iii) She may choose to return to her parent’s house and remarry. Where she chooses to do this, she is obliged to refund the bride price. Her return to her Parents and remarriage is seen to be a form of divorce.
Thankfully, the court in the case of Yesufu v. Okhia has ruled that death terminates marriage and it was mere fiction to suppose that the marriage was still in existence.
Therefore, any custom, that restricts a widow from remarrying or have another relationship until some fetish ceremonies was performed, was repugnant to natural justice, equity and good conscience. This judicial decision is no doubt commendable.
Finally, it is important to state that once a customary marriage has been dissolved, it cannot be brought back to life. If and when the parties decide to come back together as man and wife under customary law, a fresh marriage must be contracted by the parties.
Next week, we will begin with divorce under Statutory Marriages
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Omotoyosi Bibire Salihu, your Legal Story Teller.
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