Dissolution of Marriage: Problems and Prospects

Dissolution of Marriage: Problems and Prospects

CHAPTER ONE

OBJECTIVES OF STUDY

The major objectives of this long essay are as follows:

To provide enlightenment to intending couples on how to ensure stability in marriage.
To encourage good harmonious relationship not only among intending couples but also among married persons.
To redirect the attention of parents to the need to consider the well being of their children instead of seeking for divorce.
To draw attention to the social and economic problems children of divorced couples pose for a nation.
To let all and sundry be aware of the evil of dissolution of marriage and the need to avoid it at all cost.
To call attention to the need for a review and harmonisation of the various laws on marriages and dissolution in Nigeria.

CHAPTER TWO

CONCEPT OF MARRIAGE

INTRODUCTION

This essay is concerned with the law relating to marriage. Marriage is the union of two different surnames, in friendship and in love, in order to continue the posterity of the former stages, and to furnish those who shall preside at the sacrifices to heaven and earth, at those in the ancestral temple, and at those at the altars to the spirits of the land and grain.

The term ‘marriage’ is used in the family law in three specific senses: to indicate an institution within society as a whole, to name a ceremony resulting in a change in the legal status of the parties; and to refer to the joint status husband and wife. The precise meaning to be attached to the term will appear from its context. In general terms, marriage is viewed in this text as a culturally approved and legally binding set of formal relationships of one man and one woman.

It involves, in our society, a fusion of social, political, sexual and legal principles, although within our time a number of these principles appear to have been found increasingly unacceptable, giving rise to questions as to their relevance for contemporary life and law. To a significant extent, family law reflects changes in attitudes towards the principle of marriage and its legal effects.

To this point, the institution of marriage has been discussed as if all marriages were the same- a living arrangement legally contracted by or for two people of the opposite sex. However, this description has been limited insofar as it describes monogamous marriage. There are other types of marriage, which include more than one husband or wife at the same time (plural marriage or polygamy), several husbands and wives (group marriage), or ones that are not contracted on the basis of the state’s rules and regulations specified earlier (common-law marriage).

DEFINITONS OF MARRIAGE

A general dictionary defines ‘marriage as the legal union of a man and a woman in other to live together. A much cited definition is provided by Lord Penzance in Hyde v Hyde^[1]:

I conceive that marriage, as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.

Four basic conditions of marriage are apparent within this definition: the union is generally intended for life; the marriage reflects real consent; the union is intended to be monogamous; it is heterosexual.

Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

CHAPTER THREE

DISSOLUTION OF MARRIAGE

INTRODUCTION

Most of the provisions on dissolution of marriage contained in the Decree have been borrowed with certain modifications, partly from the Matrimonial Causes Act, 1959 of Australia and partly from the Divorce Reform Act, 1969 of England, particularly when the latter Act was at the bill stage.

In most Western countries, dissolution of marriage does not declare a marriage null and void, as in an annulment, but it does cancel the married status of the parties. Where monogamy is law, this allows each former partner to marry another. Where polygamy is legal, dissolution of marriage allows the woman to marry another. Divorce laws vary considerably around the world. It is not permitted in some countries, such as Malta and in the Philippines, though an annulment is permitted. From 1971 to 1996, four European countries legalised divorce: Spain, Italy, Portugal and the Republic of Ireland.

Here, we shall be concerned with the dissolution of both statutory and customary marriage. Dissolution of marriage means to legally dissolve someone’s marriage. The dissolution of a marriage contracted between a man and a woman, by the judgement of a court of competent jurisdiction, or by an act of the legislature. It is also called from the diversity of the minds of those who are married

BARS TO A PETITION FOR DISSOLUTION OF MARRIAGE

While the Matrimonial Causes Decree aims at liberalizing the ground for dissolution of marriage, this aim seems to have been circumscribed by the Decree itself. Apart from retaining almost all the bars existing in the Matrimonial Causes Act, which applied in Nigeria before the commencement of the Decree, the bars themselves have been extended with little or no modification to almost all the innumerable facts stated in the Decree as constituting the evidence of the irretrievable breakdown of a marriage.

Ordinarily, a petitioner who has proved to the satisfaction of the court that the marriage has broken down irretrievably is entitled to a decree of divorce. But such a decree may be refused if an absolute bars or a discretionary bar applies to the case. On the proof of absolute bar, the court is bound to dismiss the petition. But in the case of discretionary bar, the court has discretion whether or not to dissolve the marriage if one of the defences is established.

CHAPTER FOUR

PROBLEMS AND PROSPECTS OF DISSOLUTION OF MARRIAGE

INTRODUCTION

By many, dissolution of marriage is considered as an unmitigated evil. The experience of the human race, however, seems to prove that there may be a right and a wrong use of it, as of everything else. In some of our states, the idea still prevails that only for the one cause of unfaithfulness should divorce be granted.

We see the effect of the law in the fact that when conditions have become unbearable, one or the other of an unhappy wedded pair will give cause for dissolution of marriage, choosing to bear the stigma of wrong-doing rather than longer endure marital unhappiness. This puts an unnecessary burden of shame upon the children who must share to a degree, in the disgrace of the parents.

It is without doubt a great mistake, however, for two young people to rush to the courts as soon as they find themselves a little dissatisfied with each other. Divorce should come only at the end of a long effort to overcome the tragic situation. Thus many actions might be avoided.

As soon as the marriage ceremony is performed we look upon the contracting parties as already one. In reality, they have simply begun to try to become united in a common life. If they do eventually merge their individualities into a common existence, they are truly married. If as the years go by, instead of growing together, they grow farther and farther apart, their state cannot truly be called that of marriage.

CHAPTER FIVE

CONCLUSION AND RECOMMENDATION

CONCLUSION

Marriage is seen as involving a commitment to permanency. It has also been defined as the civil status condition or relation of one man and one woman united in law, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

Curzon L.B. defined dissolution of marriage as the formal voluntary ending of a marriage by granting of a decree of dissolution of that marriage on the petition of either party thereto, in a manner which allows the party to remarry.

The law governing dissolution of marriage under the English Common Law is contained in MCA 1973 as amended. Section 15(2) of this Act lists the grounds under which a marriage can be dissolved and they are:

that the respondent has wilfully and persistently refused to consummate the marriage;
that since the marriage the respondent has committed adultery and the petitioner find it intolerable to live with the respondent;
that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent ;
that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
that the parties to marriage have lived apart from continuous period of at least two years immediately proceedings the presentation of the petition and the respondent does not object to a decree being granted;
that the parties of the marriage; have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
that the other party to the marriage has for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under this Act;
that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.

Despite all the grounds for dissolution of marriage listed above, dissolution of marriage remains for most adults a severely traumatic experience. Demographic data suggested that divorce occur as a result of the association between pre-marital pregnancy and proneness to separation and divorce: age factor, lower educational attainment and childlessness of the union. It seems unassailable that changed expectations and improved economic position and social mobility of women have promoted dissolution of marriage.

It has been said that the future of the country depends on the way in which children are brought up. They are best brought up in the happiness and security of a sound family life. This in turn rest on the maintenance of the institution of marriage^[1]. Thus, it must be noted that more than a quarter of divorces children are more involved. They become tools or weapons of fight against each other. The issue of juvenile delinquency is a serious one; most studies of these delinquent youths reveal that a majority of them are products of broken homes.

This long essay discussed the problems of dissolution of marriage which came to being as result of the causes of divorce. It has been discovered that parental influence and intervention in their wards’ marriage usually lead to the dissolution of such marriage. It has become a common thing for parents to be arranging marriage for their ward even before they are born. The role of parents should be advisory. It has also been discovered that the causes of divorce are people’s maturity, status, different educational background, different orientation and religion.

This long essay focused on the concepts of marriage, the various forms of marriage which include customary marriage and statutory marriage even though the two forms have crossed upon each other. It also focused on the grounds for divorce which has been stated above, the problems faced by the party, the children and the society after the dissolution of marriage and the possible prospects for divorce.

RECOMMENDATION

This essay goes on to recommend that the guide line in Sec 25 (1) of the MCA should be revised to give greater emphasis:

to the provision of adequate financial support for children which should be an over-riding priority; and
to the importance of each party doing everything possible to become self-sufficient.

The latter should be formulated in term of positive principle and weight should be given to view that, in appropriate cases, periodical financial provision should be primarily concerned to secure a smooth transmission with the status of marriage to the status of independence.

One other specific recommendation made is that no law should be so lax as to lessen the regard for the sanctity of marriage. The law should be based on understandable and respected principles; it should not be thought hypocritical.

It should facilitate reconciliation between estranged spouses. It should be fair to others affected, such as the wife and children. Even the law should encourage harmonious relationships between the parties and their children after the divorce by taking the heat out of the divorce proceedings.

The only ground for dissolution of marriage was adultery. Connivance, condonation and collusion were absolute bars to the grant of a decree. The petitioner’s own adultery, delay, cruelty, desertion or conducts conducing to adultery were discretionary bars. Adultery has remained a prerequisite to divorce. The reasons for this stress on physical infidelity were:

the historical precedent of the private divorce Acts, for which the justification was originally to prevent illegitimate children being foisted on the unhappy husband whose bed had been violated,
scriptural justification for dissolution of marriage were usually based on adultery,
a wife’s adultery was totally inconsistent with the continuance of the marriage, and could not be forgiven.

It was possible for a husband to be pardoned by his wife for committing adultery but the opposite is the case for the husband. Thus, adultery as a ground for divorce should be strike-out.

The law that governs separation of property after the dissolution of marriage must be fair and certain. The state should not interfere in the relations between spouses by imposing automatic rules regulating their property rights. Fixed property rights would determine and compel people to take advice before marrying.

REFERENCES

Adesanya S.O, Laws of Matrimonial Causes (2^nd Ed, Ibadan University Press 1973).
Curzon L.B, Family Law (2^nd Ed, Cavendish Ltd 1997).
Curzo L.B, Brief Case on Family Law (4^th Ed, Cavendish Ltd 1997).
Cretney S.M, Principles of Family Law (4^th Ed, Sweet & Maxwell, 1984).
Hogget and Pearl, Family Law and Society(2^nd Ed, Sweet & Maxwell, 1984).
Kelaar E.E, Family Law and Society (2^nd Ed, Clarendon Press, 1987).
Margaret Onokah C., Family Law (1^st Ed, Spectrum Books Ltd 2003).
Micheal Freeman, Divorce: Where Next?(2^nd Ed, Butterworth 1976).
Nwogugu E.I, Faamily Law in Nigeria (Revised Edition, Heinemann Education Books Plc 1974).
Parnell Callahan J.T, The Law of Seperation and Divorce (4^th Ed, Oceana Publication 1979).

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