FAMILY LAW II-LPP 306

TOPIC: DISSOLUTION OF CUSTOMARY LAW MARRIAGE

 Dissolution of Customary law marriage
• The mediatory role of bride and groom’s family members
• Customary law marriage is a bilateral contract between the husband and
his family on one hand, and the wife and her family on the other hand
• The families throughout the duration of the marriage are called up at some
stage to assist the spouses in the settlement of domestic disputes.
• The mediatory role of the families of the spouses is considered bedrock for
the stability of the marriage
 Methods of Dissolution
• This can be categorised into the following:
• Judicial
• Non-judicial
• Dissolution by death by either of the spouses
 Non-Judicial dissolution
• The marriage may be dissolved without recourse to the law courts.
• This mode may be effected either by the mutual agreement of the spouses or by a
unilateral action of one of the spouses.
• This is a significant aspect of customary law, which has no equivalent in a
statutory marriage. The non-judicial form of divorce remains the most common
mode of dissolution. This action is often open for either husband or the wife. For
example: a husband may on his own decision drive his wife away from the
matrimonial home intending thereby to bring the marriage to an end.
 Contd.
• A wife on the other hand, who has been grossly ill-treated by her husband may
run away from the matrimonial home and return to her parents with the
intention of breaking up the marriage. In such a case, the father or guardian will
have to refund the bride price paid in respect of her marriage.
Contd.
• where the spouses fall out, the families will first attempt to reconcile them and
their differences. If, the marriage has broken down and reconciliation fails, the
spouses may agree before members of their families to bring the marriage to an
end.
• The families may thereby reach agreement on the refund of bride price paid in
respect of the marriage. If however, agreement is not reached on the quantum of
bride-price to be refunded, the husband may resort to the customary court for the
determination of his right.
 Contd.
• A wife can initiate the divorce process in any of the following ways:

a) Taking all her personal effects and quitting their matrimonial home, informing
her husband that she is through with the marriage;

b) Indulging in promiscuity while still in the husband’s house

c) Going through the preliminaries of a subsequent customary marriage with a

view to refunding the husband the bride price he had given.
Contd.
• The following are the ways in which a husband and a wife shall be deemed to be
divorced:
(a)Upon the granting of a divorce by a court on the application of either husband
or wife; or
(b)Upon oral repudiation of the wife by the husband in her presence before two
adult male witnesses of full capacity; or
(c)Upon repudiation of his wife by the husband in writing signed by himself and
dated.
 Contd.
• The mere fact that a spouse left the matrimonial home will not be construed as a
termination of the marriage. A desire to terminate the marital union must be
accompanied by an overt act which is a clear intention to dissolve the marriage or
by an express declaration to the other party.
 Judicial Divorce under Customary marriage
• In most localities in Nigeria, both the non-judicial and judicial exist side by side.
Where the family has failed to reconcile the spouses, either one of the parties
may resort to the courts.

• The parties in this case base their intentions on reasons and there is no limit to
the number of reasons that a petitioner can give for wanting to terminate a
customary law marriage.

• A man can therefore divorce his wife by bringing her before the courts and
giving sufficient reasons.
 Contd.
• Judicial action is usually brought when there is disagreement over the quantum of
the bride price to be refunded to the husband; or

• Where the husband has refused to accept the bride price and so the wife is not free
to remarry; or

• Where the wife has refused to leave the matrimonial home after the husband
sought to terminate the marriage.
 Contd.
• The judicial dissolution of customary law marriages falls within the exclusive
jurisdiction of customary courts to hear and determine matrimonial causes and
matters between persons married under customary law.

• While it is true that in general, customary law has no standardized and strict
grounds for dissolution of marriage, the customs of each locality include the
accepted grounds on which marriage may be ended.
 Contd.
• It is for the appropriate court to determine in each case whether the allegations of
the applicant are, in the light of the local usage, sufficiently grave to justify the
termination of the marriage.
• Where the court is not satisfied that the marriage should be dissolved, it may
send the dispute to the local head or other persons in the community where the
spouses live for further attempts at reconciliation.
• Where the court has refused to dissolve a marriage, the parties thereafter, may
then resort to non-judicial divorce. The man may then drive away his wife or she
may abscond on her own, thereby initiating the termination of the marriage.
REASONS FOR DISSOLUTION UNDER CUSTOMARY LAW
MARRIAGE

• There are no grounds for divorce under customary law neither is there any
legislation which stipulates the grounds upon which the marriage can be
dissolved
• There are however a number of reasons and circumstances which entitles a
spouse to dissolve a marriage and which the customary court takes into
consideration before granting a dissolution.
• These includes adultery, desertion, cruelty, lack of respect, impotence, pregnancy
by a person other than the husband, insanity, serious illness and death of the
husband. Where however, none of such reasons or circumstances exists, the
council of elders of the two families will encourage the parties to continue to live
together as husband and wife.
Contd.
• Under customary law, a woman has as much right as a man to bring a
petition or action for dissolution basing her petition on any of the
reasons mentioned except adultery and death.
 Adultery
• Adultery has been defined as sexual intercourse or cohabitation by a married woman
with another man while the dowry has not yet been refunded to her husband.
• This is not generally a reason for the dissolution of the marriage committed by the
man since the man is entitled to have other wives. If a wife alleges that her husband
has committed adultery, the husband can claim, subject to the woman in question,
being single, that he intends to marry her.
• Under Customary law, a man is entitled to be unfaithful to his wife .
• On the other hand, the adultery of the wife automatically gives a right of action by the
husband to petition for dissolution. In Loye v. Loye (1981) O.Y.S.H.C.L.R. 140, the
husband’s allegation of his wife’s first pregnancy by another man ended the marriage.
Adultery contd.
• The unequal treatment of the spouses in a customary law marriage is that
adultery by a woman is an indication that she cannot make a good mother to
her daughters as far as morals are concerned.

• However, a wife can summarily divorce her husband if he commits adultery

with a member of her family who falls within the prohibited degrees of
marriage. In Tikarewa v. Tikarewa, the wife petitioner sought a divorce of her
customary law husband on the ground that her husband attempted to rape her
daughter from her late husband.
 How is Adultery inferred?
• In most cases, adultery is inferred from all relevant surrounding circumstances.

• It could be as a result of indecent familiarity and excessive attention between

one spouse and a third party.

• Also, where husband and wife do not live together and the wife gets pregnant, it
may be inferred that the pregnancy or the child is the offspring of an adulterous
relationship. Where there has been confession of adultery, and the co-adulterer
denies such allegation, the court will have to decide whether adultery was
committed or not.
 Cruelty
• Cruelty under various customary law may be defined as willful and unjustifiable
conduct of which could cause damage to life, or health; or to give rise to a
reasonable apprehension of such danger to the other spouse, or to the
child/children of the marriage.

• A wife who is quarrelsome not only with the husband but also with other wives
may be regarded as cruel.

• A woman on her own can also seek a dissolution basing her petition on the
ground of molestation or enmity from other wives.
 Impotence
• Impotence is a sexual incapability and is sometimes taken to include sterility or
barrenness under customary law
• It is not a matrimonial offence to be barren and unless some other offences was
committed by the woman, a customary law marriage cannot be dissolved. In
Abioye v. Abioye, the court dissolved the parties’ three-year-old marriage after
the wife/petitioner proved that the husband respondent was impotent and she
could not bear it.
 Desertion
• Desertion was defined as abandonment of one spouse by the other without just
cause and without consent for a non-specified period of time before the
proceedings for divorce. Therefore, traditionally, a wife cannot leave her
husband’s house without his express or implied permission.
• The main point is that there must be in addition, a matrimonial offence before
marriage could be dissolved on the reason of desertion. In Willy Olujide v.
Modupe (1959) B Customary Court, Ilesa, the husband petitioned for divorce on
the ground that the wife was cruel and that she deserted him and stayed in another
man’s house for a number of days without his consent and divorce was thereby
granted.
 Lack of respect
• This is defined as willful disregard of the customary rights of the elders or any
member of the family. A customary law husband can divorce his wife on the
reason of her lack of respect for him and members of his family. The traditional
respect for elders amongst Yorubas has made “disrespect” by either spouse to the
other family a serious offence on which dissolution could be sought.
Pregnancy
• If it is proved that the wife was pregnant by another man at the time of
marriage, this may lead to a dissolution of the marriage. The proof
however of such pregnancy does not automatically dissolve the
marriage. It is usually at the discretion of the husband who could
either resort to divorce or forgive the wife by condoning the
pregnancy. So where such pregnancy is condoned by the husband, and
the wife is repentant and willing to stay with her husband, both will
stay and look after the child together.
Insanity or serious illness

• The customary court will hesitate to entertain a petition for dissolution based on
insanity or serious illness of either spouse which happened after the marriage.
There are exceptional cases where the court will grant divorce and it includes
lunacy of either party for a period of three years or more; leprosy contracted by
either party; or harmful diseases of a permanent nature which may impair the
fertility of a woman or the fertility of a man. In Adigun v. Adigun, the court, in
compliance with the above statutory provisions, dissolved the twenty-year-old
marriage at the suit of the wife, on the ground of the husband’s proven insanity.
 Death of the Husband

• It is not necessary for a woman to bring an action for dissolution on the death of
her husband but if the woman does not want to marry any male member of the
late husband’s family, she must apply to the court for a formal discharge of the
marriage contract.
Refund of bride-price
• This is a significant feature under customary law marriages.
• The dissolution of a customary law marriage is accompanied by the
refund of the bride-price paid in respect of the marriage.
• When reconciliation has failed between the parties, the refund of the
bride-price is one of the important issues to be settled by the family
members.
• In relation to the refund of bride price, the husband can either choose
to exercise or renounce his right to claim a refund of the bride-price.
 Contd.
• Any renunciation of the right must be made formally and unequivocally before
both families.
• The marriage will be regarded as dissolved from the time of the renunciation,
and there will be no need for the bride price to be actually refunded
• A marriage is dissolved in the case of non-judicial divorce when the bride-price
is refunded to the husband.
• Until this happens, the marriage is regarded as subsisting even if the parties
have been separated for a very long period of time
• In Registrar of Marriages v. Igbinomwanhia, it was held that under Bini Customary
law, separation does not constitute divorce. A customary law marriage can only be
dissolved by the refund of bride-price. The result of this custom is that any child born
to the woman before the refund of the dowry, no matter who the natural father is, will
be considered the child of the first husband.
• In Eze v. Omeke, it was held that a specific order dissolving any marriage under
customary law was unnecessary as it was the refund of the bride price that puts to an
end all incidents of the marriage and not an order of any court dissolving such
marriage.

• Therefore, any order dissolving any customary law marriage without a subsequent
order for the refund or acceptance of the bride price or dowry is meaningless.
 Contd.
• Where the parties do not agree on the quantum of bride price to be repaid, the
need will arise to invoke the jurisdiction of the court. The function of the court
will be to determine the quantum of the bride price and the mode or manner of its
refund.

• The primary obligation to refund the dowry at all times lies with the father or
guardian of the woman.
 Contd.
• A woman, on her own volition cannot return the bride price directly to her husband.
Even if she can afford the money, she cannot redeem herself. This responsibility lies
only with her father or guardian.

• The family group decides on what is repayable. In the absence of agreement, the
husband invariably resorts to the court to determine what is due to him. On the other
hand, where a husband refuses the offer of his father-in-law in refunding the bride price
to him, his wife may petition a court to dissolve the marriage and request an order that
the outstanding amount be paid into court to await its collection by the husband.

• Where he fails to collect this, it may be forfeited to public revenue.

Quantum of bride price
• The quantum of the bride price recoverable varies from community to
community.
• The Court looks at the wear and tear of the marriage and takes the following into
consideration when determining quantum of bride price:
i. The duration of the marriage

ii. The number of children born during the marriage

iii.The degree of blame, if any, attaching to the husband and wife.

Quantum contd.

i. Where the marriage has been consummated----N70.00

ii. Where the marriage has existed for less than one year----N60.00

iii.Where the marriage has existed for one year or more (but less than five
years)—N50.00

iv.Where the marriage has existed for five years or more-----N40.00

 Dissolution of Death

• Under customary law, the death of a wife terminates the marriage. On the other
hand, the death of the husband does not necessarily terminate a customary law
marriage. The husband maintains the obligations as a son-in-law to the deceased
wife’s maiden family if there are children of the marriage

• Where the husband dies, the surviving widow has a number of options open to
her. She may remain as a member of her husband’s family or return to her
parents. If she decides to remain in her husband’s family, she may marry a
member of that family or stay as the wife of her deceased husband.
Contd.
• Where the widow marries a member of her late husband’s family, her consent is
an essential feature of such arrangement. A widow may under such arrangement
marry the brother of her late husband.

• A son cannot however marry his mother. In such an arrangement, no fresh bride
price is paid for such a marriage.

• It was held that the basis of this custom is to ensure the continued maintenance
of the widow and of the children (if any).
 Contd.
• The death of the wife has no effect on the legal capacity of the surviving husband to
contract a subsequent marriage under customary law.

• The husband can marry any subsequent wife or wives whether or not his first wife is
living or dead. In other words, it is a marriage that is potentially polygamous

• The husband however has no right to the refund of the marriage symbol he gave on
his deceased wife. If one of his wives dies, nothing precludes him from marrying
another wife under customary law but he has no right to contract such a marriage
under the Marriage Act as long as his marriages to the other wives still subsist. If the
sole customary law wife of a man dies, he acquires the capacity to marry another
wife under the Act.
 Contd.
• However, a man cannot contract a statutory marriage with another woman as long
as his marriages to the other wives under customary law still subsist. He will need
to divorce all the wives before he can marry under statutory law.
Maintenance and Financial Reliefs under Customary
Law
• A.)Maintenance for Deserted Customary Law Wife
• Under customary law, the wife has no right of maintenance
• The husband owes no duty to the wife to maintain but his legal duty continues to
apply in certain circumstances
• These certain circumstances are:
• The pregnancy of the wife
• Or where the wife is nursing a baby
 Contd.
• The husband incurs financial liabilities for maintenance if he fails to
maintain during this period
• Where the wife returned to her family on the separation of her husband,
they have a right to retain the child in their custody until the father has
discharged his duty of maintenance

• B.) Maintenance following Divorce:

• No right of maintenance after divorce is accorded the customary law wife
• It has been held that payment of such allowance to a divorced woman is
contrary to native law and custom
 Contd.
• Despite the rule that no maintenance may be granted following divorce, the view
that the customary law wife should receive financial consideration from her
husband on divorce has been expressed by some judges
• A husband should maintain his wife when she is pregnant
• The husband can only claim custody once he has discharged any arrears of
maintenance
• A wife can sue her husband for money spent on maintaining herself during
pregnancy or nursing his child
Contd.
• Enforcing maintenance
• Mediatory role of the family of those spouses
• The duty of the family to settle disputes
Custody of children under customary law
• A father under customary law has exclusive custodial right over the children
of his marriage
• The wife has no such rights over her children under customary law
• Patrilineal nature of customary law
• When there is divorce, the husband’s family supports the upbringing of their
son’s children and overriding the need for the wife to raise her children
• A woman may have temporary custody of the children that are of tender age
• The father of the children will claim once they reach the age of three to five
years
Contd.
• A wife who wishes to remarry must return the child to her ex-husband in order
to prevent the possibility of her new husband claiming the ownership of the
children
• Refund of bride price may be an issue where the wife re-marries: Edet v. Essien

• The welfare principle is disregarded under customary law custody cases- Ogbu
v. Essien