There is a difference between matrimonial causes and family law.

To what kind of marriage will matrimonial causes act apply? It will only apply to statutory marriages under the marriage act. See HYDE V HYDE (1886) – this case defines a statutory marriage as the voluntary union for life of one man and one woman to the exclusion of all others.

Procedural rules that will govern the way and manner family relations will be executed in court when an action is instituted. Matrimonial causes act will only apply to statutory marriages not customary law marriages or Islamic or church marriage.

Distinction between a statutory marriage and church marriage – simply marrying in a church just gives you church blessing.

If you’re getting married in a licenced place of worship, it must be within the hours of 8am – 6pm in open doors and it must be contracted by a licenced minister in that licenced place of worship and it must be in the presence of two or more witnesses apart from the pastor and the registrar of marriages.

For church marriage or marriages contracted in a place of worship to become statutory marriage it must be contracted:

1. In a licenced place of worship for that purpose
2. By a recognised minister of the church, denomination or body to which such place of worship belongs
3. According to the rites or usages of marriage observed in such church, denomination or body.

See s21 Marriage Act (MA) & its proviso; NWANGWA V UBANI (1997); ANYAEGBUNAM V ANYAEGBUNAM (1973)

In which places can statutory marriages be contracted? S.21 MA & s.27 MA – licenced place of worship and marriage registry.

 

Applicable laws

Laws that govern matrimonial causes

1. Marriage act 1958, CAP M6 LFN 2004
2. Matrimonial causes act 1970, CAP M7 LFN, 2004;
3. Matrimonial causes rules, 1983

 

In matrimonial causes the judge expects you to address orally but the judge can order you to file a written address. In matrimonial causes you can go through examination in chief because there is no witness statement on oath.

 

Scope of matrimonial causes

Proceedings that are covered under matrimonial causes act

1. Dissolution of marriage
2. Nullity of marriage
3. Judicial separation
4. Restitution of conjugal rights
5. Jactitation of marriage
6. Any consequential reliefs that mat be granted under matrimonial causes s. 114(1) MCA

Courts with jurisdiction

Court that has jurisdiction over matrimonial causes. See s.2 (1) MCA – the high court of any state. However where an order has been given as to either maintenance to a party or child in a marriage, then the court of summary jurisdiction can enforce that order i.e. magistrate court and district court can enforce that order.  

Enforcing orders as to maintenance

Basis of a Nigerian court assuming jurisdiction in matrimonial causes. s 2(2) MCA – the court looks at whether petitioner is domiciled. The basis of instituting the action is the domicile of the petitioner 

What is domicile? See BHOJWANI V BHOJWANI (1996) – it was held that where you’re domiciled in any state in Nigeria you’re deemed to be domiciled in Nigeria.

Domicile is differentnationality; domicile is a place where you want to make your permanent abode, see OMOTUNDE V OMOTUNDE.

How is the domicile of a person determined? See BHOJWANI V BHOJWANI SUPRA OMOTUNDE V OMOTUNDE (2001) 9 NWLR (PT 178) P 252 – the court held that where a married woman has been deserted by her husband she can change her domicile but in changing her domicile she must show evidence

Domicile of a deserted wife.see s.7(a) & (b) MCA.- these provisions are to protect deserted wives

One single Nigerian domicile for the purpose of jurisdiction 

 

 A petitioner can institute proceedings in any state of the federation. See s.2(3) MCA ; ADEGOROYE V ADEGOROYE (1996) ; ANI V ANI (2002) 6 NWLR

Note: doctrine of FORUM CONVENIENCE. See also s.9 MCA  - sometimes it may be subject to the doctrine because s 9 empowers the High Court judge to request the petitioner to file the petition in a more convenient state especially where the place of residence is far.

 

MATRIMONIAL RELIEFS

Principal reliefs that can be sought in matrimonial cause proceedings:

1. Decree of dissolution of marriage
2. Decree of nullity of marriage
3. Decree of judicial separation
4. Decree of restitution of conjugal rights
5. Decree of jactitation of marriage. s 2(2) MCA

 

Nullity of void marriage

What is a void marriage?

Circumstances that will make a marriage void

1. Either party is at the time of marriage lawfully married to another person.

• Note penalty in s.33 (1), 35, 46 &47 MA; s 370 Criminal Code

2. Parties are within prohibited degree of consanguinity or affinity. Consanguinity is blood relation, affinity is relationship of marriage. Can people within prohibited degree of affinity ever marry? Parties related by affinity can still get married so long they obtain leave of court and they must establish special circumstances s 4 MCA
3. Marriage is not valid under the law of place of celebration
4. Consent of either of the parties is not a real consent
5. Either of the parties is not a marriageable age.

• What age is marriageable age? 21, where any of the parties is under 21 years age they must seek the permission of their parent or guardian to get married
• See generally s. 3(1) MCA

6. Both parties knowingly and wilfully acquiesce to celebrating the marriage:
7. In a placethat is not the office of registrar of marriage or licensed place of worship
8. Under false name (s)
9. Without registrars certificate of notice to marry
10. By a person that is not a recognised minister of some religious denomination or registrar of marriages. See CHUKWUMA V CHUKWUMA (1996) – here the wife did not know that the husband did not obtain a registrars certificate of notice, it must be the two parties; AKPARANTA V AKPARANTA (1972) ; ANYAEGBUNAM V ANYAEGBUNAM (SUPRA)

 

NULLITY OF A VOIDABLE MARRIAGE

What is a voidable marriage?

Circumstances that will make a marriage voidable.See s.5 MCA

• Where at the time of the marriage:

1. Either of the parties is incapable of consummating the marriage;
2. Either of the parties is (i) of unsound mind or (ii) mentally defective or (iii) subject to recurrent attacks of insanity or epilepsy;
3. Either party is suffering from a venereal disease in a communicable form
4. The wife is pregnant by a person other than the husband. See generally s.5(1) MCA

• Can any of these factor be condoned
• Categories of persons that are barred from bringing a petition for nullity of a voidable marriage. See s.35 MCA
• The court will not make a decree for nullity of a voidable marriage:

1. Except the incapacity under s. 5(1)(a) existed also at the time of hearing the petition and the incapacity is incurable or the respondent refuses to submit to medical examination or treatment. See S 36(1) MCA
2. Where by reason of the petitioners knowledge of the incapacity at the time of the marriage or conduct of petitioner since the marriage or lapse of time, it will be harsh and oppressive to the respondent or contrary to public interest to make a decree. S 36(2) MCA
3. Where the decree of nullity of marriage shall not be made on the ground that the marriage is voidable by virtue of section 5(l)(b), (c) or (d) of this Act unless the court is satisfied of the following:
4. The petitioner was at the time of the marriage ignorant of the facts constituting the grounds
5. Petition was filed not later than 12 months after date of marriage; and

• Marital intercourse has not taken place with the consent of the petitioner since he/she discovered the existence of the facts constituting the ground. See s.37 MCA

 

Effect of a decree of nullity of a voidable marriage.

• Marriage shall be annulled from and including the date of the decree becomes absolute. See s.38 (1) MCA
• Any child of the parties born or legitimated during the marriage shall not be rendered illegitimate. S 38(2) MCA

 

Mode of petition for a decree of nullity of a marriage is by FORM 6. See OR.5 R.18 MCR. So the heading would be petition for nullity of a void marriage, petition for nullity of a voidable marriage

 

Note the differences between void and voidable marriage –

1. A void marriage may be put in issue at any time by any body even after the parties are dead but a voidable marriage becomes unimpeachable once any of the parties is dead

 

DISSOLUTION OF MARRIAGE

What is a decree of dissolution of marriage?

The ground for dissolution of marriage. See s.15(1)MCA there is only one ground for dissolution of marriage – that the marriage has broken down irretrievably 

Facts that the petitioner must proof to establish this ground. See s.15 (2) MCA; Also 16 (1) MCA & s.164 EA 2011; DAMULAK V DAMULAK (2004); JOHNSON V JOHNSON (1972)

 

Instituting proceedings for the dissolution of marriage

When can proceedings for dissolution of marriage be instituted? See s.30(1) MCA;

• The 2 years rule: when the marriage is under 2 years a petition cannot be instituted unless the leave of court is sought. The essence of this two years rule is to prevent people from jumping in and out of marriages

Circumstances for granting leave to institute proceedings. See s.30(3) MCA; AKERE V AKERE (1962); MAJEKODUNMI V MAJEKODUNMI (1966); Williams v Williams (1979). - Leave of court is not automatic, you must show exceptional hardship on the part of the petitioner or exceptional depravity on the part of the respondent. In MAJEKODUMNMI – the court has held that where the husband deprived the wife of conjugal rights and went out to have a relationship with another woman who had a child for him.

 

Instances when the 2 years rule will not apply.

1. Dissolution is based on facts in s.15 (2)(a) or (b) or s.16 (1)(a) MCA .see s.30 (2) MCA
2. Matters is commenced by way of cross-proceedings

• Procedure for application for leave to institute petition for dissolution of marriage within 2 years.
• By what mode would you seek leave of court to bring petition under 2years - is by motion ex-parte supported by affidavit. OR 4 R 1&2 MCR

 

Parties to petition

Who are the parties to a petition for dissolution of marriage?

• Person who will be affected by the proceedings. See OR 9 R 1 MCR
• When 3^rd party can be party to the suit. S.32 MCA; OR 9 R 2 &3 MCR; ERHAHON V ERHAHON SUPRA
• When court will not award damages for adultery. s .31 (1)-(3): where adultery ahs not been pleaded as a fact to be relied upon to dissolve the marriage, where it is shown it has been condoned, where the period of committing the adultery is over 3 years.

 

Class work – draft up till the parties. Ade Johnson (petitioner), Simi Johnson (wife),  ChiefLagbaja ( third party)

 

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEJA

SUIT NO:

BETWEEN

ADE JOHNSON…………………………...………….……..PETITIONER

AND

• SIMI JOHNSON ………………………………………..RESPONDENTS
• CHIEF LAGBAJA ………………………………………CO-RESPONDENT

 

NOTE: for matrimonial causes you use ‘suit no’ not ‘petition no’

 

RECONCILIATION

Both the court and counsel have been enjoined in matrimonial causes to promote reconciliation.

Where a party to proceedings for dissolution of marriage is represented by counsel what steps must counsel take?

Certificate of reconciliation must be filed by counsel to accompany the petition. OR 2 R 2 MCR; ANYASO V ANYASO SUPRA; the certificate of reconciliation is to be in FORM 3 or 3A

What are the courts enjoined to do in a matrimonial cause proceedings? See s.11 MCA the judge gives the parties at least 14 days to resolve the issue, where they cannot resolve and the matter comes back to court the judge cannot continue the matter, he has to refer it to another court unless he obtains consent of the parties.

 

Commencement of proceedings

Mode of commencement of proceedings for dissolution of marriage is by petition: see OR 3 R 1; OR 5 R 11 MCR. Its in FORM 6

You need to note the contents of a petition. Contents of a petition see OR 5 R 1 MCR

• Heading of the court
• Suit number
• Names of the parties
• Title: e.g. divorce petition
• Name and address of the petitioner and respondent
• It must state the fact that marriage was contracted and a place and date where the marriage was contracted
• State the surname of the respondent immediately before the marriage
• State the particulars of the place and date of birth of the petitioner and respondent
• It must state expressly the domicile of the petitioner
• It must state the particulars of the cohabitation
• If there are children of the marriage, it must state the names and dates of birth
• Particulars of any previous proceedings between the parties
• Facts that have led to the break up of the marriage
• Day the parties stopped cohabiting
• State if there was any condonation, connivance or collusion at presenting the petition
• Plans for custody of the child and proposed arrangement for the children of the marriage

Documents that must accompany the petition: 

1. Notice of petition (FORMS 8,9, or 10) – this gives notice to the respondent that a petition has been filed/instituted against him and also tells the petitioner the steps to be taken in the matter
2. Marriage certificate – this is proof and evidence of a valid marriage subsisting between the parties
3. Acknowledgment of service – this is proof that a petition has been served on a respondent and it is on this that the respondent would state whether or not he wants to defend the petition
4. Verifying affidavit. See OR 5 R 10 (1) MCR; ANYASO V ANYASO (1998) – it is where a petitioner would state or verify the truthfulness of all facts stated in the petition

 

DISCRETION STATEMENT

What is a discretion statement and when is it filed? See OR 11 R 28 MCR & FORM 30

What should it contain? See OR 11 R 29(1); ERHAHON V ERHAHON SUPRA. It must contain the particulars of the adultery, the date, place, time of commission. It must also state the conditions that led to the person committing adultery. 

Conditions to be fulfilled before filing. OR 11 R 29 (2)-(4) MCR:

• The discretion statement that has been prepared must be duly signed and dated by the party who prepared it
• It must be put in a sealed envelope and it should be marked as discretion statement

 

CUSTODY

Who will qualify asa child of the marriage? See s.69 MCA ;

 What will the court considerbefore granting custody? See s71 MCA; NZELU V NZELU (1997) 3 NWLR (PT 494) P 472; WILLIAMS V WILLIAMS  (1987)

CUSTODY TO PARENTS

CUSTODY TO 3^rd PARTY

In granting custody the court will consider the best interest of the child, this is what is paramount to the court in granting custody.

In granting custody the court can grant total custody to one party, where the court does this the other party would have right of access to the child – right to visit the child.

Note joint custody.  

 

Maintenance

What factors will the court take into consideration in ordering maintenance in matrimonial proceedings?

• Menas (2) earning capacity (3) conduct of parties. See S.70 (1) MCA; MENAKAYA V MENAKAYA (1996); ERHAHON V ERHAHON SUPRA

 

ORDERS TO BE MADE

Orders the court can make after hearing the petition for dissolution:

• Order nisi
• After 3 months Order Absolute - the order would become absolute. See s 56-58 MCA; DEJONWO V DEJONWO (1993) 7 NWLR (PT.306) P.483
• No right of appeal against a decree absolute in matrimonial causes. See s241 (2) Const. 1999

 

 

Compulsory conference

• What is a compulsory conference – the parties meet to discuss settlement of property jointly owned, custody of children, education of children maintenance of the children or spouse
• When is it required to be conducted? See OR 11 R 33-37
• What is the essence? The essence is for them to agree on all those things before going to trial. Once these matters are agreed upon the trial would be fast.

 

Setting down for trial

• Procedure for setting down petition for dissolution of marriage for trial
• Undefended suit – FORM31 , SEE OR 11 R 39 MCR
• Defended suit – FORM 32, OR 11 R.40 MCR

 

Intervention by other parties

 Who can intervene in matrimonial causes?

1. See 62 & 63
2. AGF may delegate his power to AG of the state 64 MCA
3. Other person may intervene s.65

 

Answer to petition

Must be filed within 28 days of service of petition. Time to be specified within notice of petition. If abroad 30 days.

The answer must be in FORM 15

 

Reply to answer

Where a petitioner wants to respond to new issues raised in the answer he may file a reply to answer,

Must be filed within 14 days after service of the answer on him. See OR 7 R 4 (5) & (6) MCR

Must be filed in FORM 17

 

CROSS PETITION

What is a cross petition and under what circumstances is it filed? It is usually filed by the respondent who want to apply for dissolution of marriage but on a different ground from the one relied upon by the petitioner

Filed within 28 days after service of petition. It is usually in FORM 15 A.

A respondent can have an answer to petition and cross petition.

 

JUDICIAL SEPARATION

This is used where the parties want their marriage to continue to subsist but they don’t want to leave together. Every attribute of a marriage remains with them just that they cant live together 

When can petition for judicial separation be brought?

Facts on which petition for judicial separation can be brought. See s.15 (2), 16(1) & 39 MCA. They are the same facts.

Effect of judicial separation. See s 41-43 MCA:

• The marriage is still subsisting
• They can sue each other in tort and contract
• When any of the parties dies, the party alive can inherit the property of the deceased party as they are still married

 

RESTITUTION OF CONJUGAL RIGHTS

• This is where the parties have been judicial separated by the court or where of their own choice they choose to live apart, one of the parties can bring a petition for restitution of conjugal rights

What is restitution and on what grounds can the court grant restitution of conjugal rights – s 47 MCA

Effect of restitution of conjugal rights - the effect of this is that when the court hears the parties the court can only make an order to tell the parties to cohabit the court cannot enforce sexual activity

 

JACTITATION OF MARRIAGE

Where the respondent ahs been falsely and persistently boasting that he is married to the petitioner. It is false in the sense that there is no marriage at all between the parties

On what ground can a petition for jactitation of marriage be brought? see s 52 MCA; OR 22 R 2 MCR & FORM 60 MCR

Contents of the petition – It must state the particulars of the false and persistent boasting. The date, time place and the gathering in which the person was falsely and persistently boasting that he/she is married to the petitioner.

Where the petitioner had acquiesced. See AYENI V OWOLABI (1986) 2 QLRN P.241- it can be condoned where it hasn’t been corrected

Use of petitioner’s name after dissolution of marriage, nullity of marriage or jactitation of marriage. See AYENI V OWOLABI (Supra) – a woman can use any name so long she isn’t claiming to still be married to the man.