Divorce and maintainance orders
UCHE NA ONLY YOU WAKA COME
SO, YOU WANT TO LEAVE YOUR HUSBAND…!
MARRIAGE: the voluntary union of one man and one woman (usually to the exclusion of all others).
DIVORCE: the legal dissolution of a marriage by a competent court.
PLEASE NOTE: In Nigeria we also have Customary Marriages, however for the purpose of this article I shall focus on marriage under the Matrimonial Causes Act (the “Act”).
I must stress that the purpose of this article is not to encourage divorce but merely to educate on ones rights should one ever find themselves contemplating divorce.
We are now seeing the increasing trend of couples asking the courts for a divorce; statistically divorce rates in Europe and America have increased sporadically over the last two decades, with an average of 57% of all marriages ending in divorce. In Nigeria divorce is still somewhat of a new thing, however the rate of marriage break downs is now on the rise.
THE LAW ON DIVORCE
The first stage of the process is an application to the court by the party seeking a decree for the dissolution of their marriage. Upon receipt of the application the courts must be satisfied that certain conditions apply, these include:-
• That either of the parties committed adultery;
• That either of the parties has willfully and persistently refused to consummate the marriage;
• That either of the parties has failed to comply with the restitution of conjugal rights for at least a year; or
• That the parties have been living apart for a period of two years from the date of the filing of the application.
The blunt fact is Nigerian courts DO NOT encourage divorce, and judges have the authority to MANDATE that couples explore different forms of reconciliation before granting the application, the effect of this is that it can take years from the date of the filing of the initial application to the final decree absolute; It is not unheard of for proceedings to take in excess of 8 years.
In one particular instance, the couple had no children together and did not hate each other, but the marriage simply was not working and so they decided to split; they shared mutual friends and were friendly to one another. One day in court, several years into the divorce “process”, the lady was asking the man “so how is mummy, how is daddy, how is…..”, the shock on the other lawyers face was unforgettable; the lawyer promptly ushers the man to the other side of the court room and instructs him to form vex; all because the lawyer knew very well that if that particular judge saw the couple being friendly, she would order further reconciliation of the parties.
Maintenance: Periodic financial support received by a party claiming maintenance (yes men are equally as eligible for maintenance as women).
In the USA and Europe, the party claiming maintenance is entitled to receive maintenance sufficient to maintain the marital standard of living, as long as the buoyant party can afford to maintain this lifestyle. A key factor aiding the courts determination of this being the ability to prove historical expenses and reasonable needs.
Courts in these jurisdictions regard both parties as having an equal contribution to the success of the home, irrespective of title to assets. They contend that it is the joint effort of both parties which has led to the accomplishments the union has achieved and it is on this premise of joint effort that, especially where the couple have been together for some time, the party claiming maintenance would be entitled to half of the combined wealth of the household.
Where the marriage was contracted when one party already had a significant level of wealth, the party claiming maintenance, in claiming maintenance, can argue that the buoyant party has “introduced them to a lifestyle which must be maintained”, again proof of historical expenses for the duration of the marriage would be necessary.
The average duration of an uncontested divorce application in these jurisdictions varies from 6 weeks to 16 months.
Unfortunately, here in Nigeria, with the way the Act is couched, what the party seeking support walks away with and, how long it takes them to walk away is mostly determined by the judge in the matter; as you can imagine, this is heightened where the party cannot afford to hire a top notch lawyer (they say a good lawyer is one who knows the law, but a great lawyer is one who knows the judge…).
The court has discretion in granting maintenance orders, however they tend to be guided by the following: –
• The social standing of the parties and their lifestyles;
• The respective means and earning capacity of the parties;
• The age of the parties;
• The conduct of the parties during the marriage; and
• The existence and the number of children.
These principals guiding the courts in the granting of maintenance orders have been upheld in a number of instances, however the extent of the maintenance granted (whether for the life of the party claiming maintenance, or for a specified period of time) is solely at the discretion of the judge. In the interpretation of the Act, the judge is only limited to what the judge has deemed as being just and equitable; the test for just and equitable however depends on the circumstances the judge has interpreted as revolving around the application.
I must stress that in most instances, maintenance orders terminate on the remarriage of the party granted the maintenance order and the obligation to give spousal support is completely distinct and separate from the obligation to support any children from the union. Maintenance orders in regards to children are usually effective until the child is 21 years of age, however where the child has a disability or special need then this too may be extended indefinitely.
Aside from spousal support and child maintenance, the courts also have discretion in regards to the award of immovable property to a party claiming maintenance. Unfortunately (or fortunately, depending on perspective) the European precedent of splitting everything down the middle has been strongly opposed in Nigeria, and again the judge is only confined to the test of what is just and equitable. Hence where during the course of the marriage a party has acquired 10 properties across the country, the courts will, if the judge decides to give anything, tend to give nothing more than 2-3 properties to a party seeking maintenance.
WHO FAULT IS IT ANYWAY!!!!
Because of the autonomy given to judges in making awards for divorce settlements, in Nigeria we have developed a culture of blame, thus the party who is deemed as being “responsible” for the breakdown of the marriage will be penalized for not upholding the marriage vows.
This has caused the party wishing to file an application for divorce to plot before taking the first step; gathering the necessary evidence to strengthen their case (i.e text messages, photographic evidence, voice recordings, video evidence etc.).
The courts have now developed the tendency of looking into the marriage to determine who is at fault, thus determining the person who should lose more upon divorce. As mentioned before one thing that can significantly preempt the judge’s discretion is significant proof. I do not believe a judge can mandate reconciliation where the husband has video evidence of his wife engaged in lude conduct with another.
You may have noticed that in this article I have referenced the “party claiming maintenance” as opposed to the man or woman; The fact is family law in Nigeria is premised on the presumption that the woman is the weaker of the parties, thus we have never had any recorded instance where a man has attempted to claim maintenance, however this does not mean that, if the right circumstances were to present themselves, the man would not have a valid claim for maintenance. I am sure that there are many households where the woman is the primary breadwinner, this coupled with her being at “fault” will make for a very interesting application.
One thing I must urge is that any party contemplating divorce should seek marriage counselling before seeking legal consultation, some lawyers are looking for money at all costs. A man filed for divorce hours after the grand wedding ceremony; his reason being the discovery that his bride had been wearing “butt pads” to augment her natural physique for the entire duration of their courtship. Am sure a marriage counsellor would have suggested squats as opposed to a dissolution of the marriage.
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