SOURCES OF FAMILY LAW-Nigerian legislation, English law which

consists of common law of England, doctrine of equity, statutes of

general application, statutes and subsidiary legislation on specified
matters; judicial precedent, customary law, international law.

HISTORY OF FAMILY LAW

after the secession in 1861, marriage ordinance came in 1863,

alongside registration ordinance and subsequently the divorce
ordinance of 1872 and 1873, another marriage ordinance came in
1884 as the most comprehensive act and repealed the other laws,
1886 Lagos was separated from gold coast but the laws were still
applicable there but it didn't apply to the north, a marriage
proclamation came in 1902 and with the north and south being
merged it repealed the 1884 act still the north was left out, then in
1907 a marriage proclamation came in and it was applicable to both
north and south, in 1914 another marriage ordinance came up to aid
easy streamlining of marriage laws, it repealed the ordinance of
1906/1907 and the foreign marriage ordinance of 1913.presently,
monogamous marriage laws is regulate by the marriage act CAP
218LFN 1990 and the matrimonial causes is guided by the matrimonial
causes acts 1970

FAMILY LAW- defined by black laws as the body of laws dealing with
marriage divorce, child custody, support, child abuse, neglect etc., it
also deals with estates, wills, properties, contracts etc. as they relate to
families

Family is the smallest unit of the society, according to Richard

Greene it is a group of people living together, including a man, his
wife, his children, his brother’s wife, his brothers, etc.
MARRIAGE- according to black laws, it is a legal union of one man
and a woman as husband and wife or a contract according to the form
prescribed by law

marriage is the voluntarily union of one man woman till death do

them part/dissolution of marriage

2 systems of marriage-monogamy/polygamy

monogamy-statutory/legal marriage, religious wedding

polygamy-Islamic/ traditional/customary

whether a transgender can be regarded as male or female- cases:

Corbett v Corbett, MT V JT,

Corbett v Corbett- since the girl was a man biologically from birth the
marriage is null and void

general rule- section 15(2) of the MCA- non consummation of

marriage is a ground for divorce (lack of sexual intercourse)

MT V JT- a transgender is the gender he/she has changed to by

reason of that sex the marriage is valid

monogamous marriage-section 18 of the interpretation act 'a

monogamous marriage is a marriage which is recognized by the law of
the place where it is contracted as voluntary union of one man and a
woman to the exclusion of all others during the continuance of
marriage, its governed by statutory law

Case-HYDE V HYDE- a voluntary union of one man and one woman

to the exclusion of all others

marriage must be voluntary, it must be a union for life, it is a union

between a man and a woman
rule-burden of proof lies on the plaintiff to prove a marriage or type of
marriage

rule-only monogamous marriages have the union of man and woman

as one person

Polygamous marriage-El Nwogwu described it as a voluntary union

for life of one man and several wives, it depends on his affluential
capacity to handle the number of women , its governed by customary
law

rule- under customary law, where only one person has fulfilled his/her
obligation the customary court may not compel the other part to
perform his obligation, and specific performance is rare

remedy- restitutio in integrum-placing the parties back to the position

they were before the contract

legal characteristics of marriage-contract, status, sanctity of

marriage, marriage and co-habitation, consent, capacity, etc.)

the co-existence of two or more systems is due to- colonial days of

British administration, existence of multiplicity of ethnic group with
diverse cultures, legislative dualism

contract-marriage is a contract whereby parties enter legal obligation

with rights and duties. this is mostly available in monogamous
marriages, under monogamy its simple, consensual, reciprocal and this
brings the union, you have to follow due process of divorce unlike the
customary marriage.

general rules-marriage can’t be discharged by frustration except

death, in a customary marriage it affects the marriage but not the
relationship between families, bride price is significant for this
marriage
status-marriage creates a status that's only recognized in the country
where the people are domiciled or sometimes universally

general rule-the law deprives the spouse to sue for torts for
maintenance of peace though it has been modified for protection of
spouse and properties.

another rule- if a spouse buys a property under your name whether

married or divorced, the property is yours because there was an
intention that it is meant for you

another rule- under customary law a husband can sue/file a petition of

adultery against his wife and her concubine.

sanctity of marriage- there is a presumption that there is a valid

marriage between a couple because it must have followed due
procedure of law

local classicus- Agnes v Jeremiah. Agnes married Jeremiah in church,

Jeremiah married chinelo after and Agnes sued that the marriage as
void, the defendants chinelos children countered it and said the
church wasn't licensed and the religious marriage wasn't valid and in
accordance of the marriage act, the officer of the church then
evidenced that the records before 1950 which were lost and destroyed
were still acceptable by the court. the court held that there was a
subsisting marriage between Agnes and Jeremiah'

case: onwudinjo v onwudinjo- ' marriage can be presumed from co-

habitation'

marriage/cohabitation- just because two people cohabit doesn't

necessarily mean they are married, whether they're fiancés or not ,
cohabitation is not a necessity for marriage and it isn't recognizable
under the law.
general rule- there is a presumption that where parties have lived
together for a long period of time, such they are regarded as husband
and wife.

*The above rule can be rebutted in law.

CASE: CHAWERE V AIHENU- the court held that ' mere living
together per se doesn't constitute a customary marriage.in Nigeria
cohabitation is frowned at by the society as a violation of the moral
code

CONTRACT TO MARRIAGE

a contract to marriage isn't formal or strict, it doesn't have to be in

writing, mere spoken words can constitute it. consensus ad
idem/mutual interest makes up a contract to marriage.

local classicus- ezeanah v attah --' an agreement of contract to

marriage is a bilateral affair between a man and a woman and both
parties must be ad idem in respect of any collateral transaction related
to the intended marriage'

case: esisi v obaowufunmilola- 'indeed there was a contract to marry

based on the several correspondents passed between them'

general rule- if there is a promise to marry under the native law, the
english law does not apply

Things to show to enforce a marriage- promise to marry whether

written or not, the proposed marriage is statutory/monogamous

Factors that need to be present for the court to hold a breach- single
status, capacity, marriage contrary to public policy
case on contrary to public policy & single status- spiers v hunt (living
together), wilson v carnley (living together), fender v st john
mildway(living apart)

public policy rule will still apply- wife asks husband to marry after
death, complete divorce, runaway wife, man living with another
woman who has a child for him.

-just because a wife is in an asylum, the man can marry again, it is void

rule-a promise to marry while divorce is pending is void

when there is a void-ab initio marriage, there can be no plea for public
policy.

rule- a contract to marry to which the married person is a party is

against public policy and its void- wilson v carnley

rule- ex turpi causa non oritur rule applies when the plaintiff knows
the defendant is married at the time the promise was made - no
remedy for something illegal, or void-ab initio

rule-if the other party isn't aware of the marital status then he is not in
parli delicto with the defendant and can recover damages.

parental consent- it is not necessary to

infancy

breach of contract

GENERAL RULES

rule-if the other party isn't aware of the marital status then he is not in
parli delicto with the defendant and can recover damages.
general rule- if there is a promise to marry under the native law, the
english law does not apply

general rule-the law deprives the spouse to sue for torts for
maintenance of peace though it has been modified for protection of
spouse and properties.

another rule- if a spouse buys a property under your name whether

married or divorced, the property is yours because there was an
intention that it is meant for you

another rule- under customary law a husband can sue/file a petition of

adultery against his wife and her concubine.

general rules-marriage can’t be discharged by frustration except

death, in a customary marriage it affects the marriage but not the
relationship between families, bride price is significant for this
marriage

rule-burden of proof lies on the plaintiff to prove a marriage or type of

marriage

rule-only monogamous marriages have the union of man and woman

as one person

general rule- section 15(2) of the MCA- non consummation of

marriage is a ground for divorce (lack of sexual intercourse)