Saturday, 21 July 2018

DISSOLUTION OF STATUTORY MARRIAGE (Part 2)

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MAINTENANCE 

A man has a legal duty to maintain and provide for his wife and children, and his wife and children have a legal right to compel him to maintain them. The man’s duty to maintain and provide for his wife and children is usually not terminated by dissolution of the marriage. A man has a duty to maintain his divorced wife usually until her death (though the order could be made to last for a limited time depending on the circumstances of the case) or until she remarries. The duty to maintain his children terminates when they attain the age of twenty-one.

The law also recognises that men, in some cases, are also entitled to maintenance. A man who feels his wife is financially buoyant or up to the task may ask the court to order her to maintain him.

The court, in making an order for maintenance, will consider a lot of factors such as the means of the parties, earning capacity of the parties, standard of living of the parties, conduct of the parties during the marriage and even the age of the parties.

Usually, the court would be very unwilling to make a maintenance order in favour of a spouse who has sufficient means to maintain his/herself.

CUSTODY OF CHILDREN

Under some customary laws in Nigeria, the children of the marriage are deemed to be the children of the man alone and so, when the marriage comes to an end, the woman is deprived of the right to have custody of the children. In some other customary law systems, the woman would only have a right to custody of the children when she has returned the bride price paid by the man. It should be noted that, irrespective of the type of marriage contracted, both spouses have equal rights to contend for the custody of the children of the marriage. Any custom which outrightly deprives a spouse of such rights could be held to be invalid by a court of law if such a custom is challenged. 

An order for the dissolution of a marriage would not be made unless satisfactory plans have been made for the care of the children of the marriage.
Where the custody of the children of the marriage is contested by both parties to the marriage, the court can make any order which it believes would be in the best interest of the children. Some of such orders are:

1.    An order granting full custody to one parent while granting full, restricted, unrestricted or supervised access to the other parent. What this means is that the child of the marriage would live with the parent who was awarded full custody and that parent would make decisions affecting the upbringing and education of the child while the other parent would only be able to visit the child at scheduled times. Where supervised access is ordered, then the parent who was granted access can only visit or be around the child in the presence of the other parent or some other authorised person. Supervised access is usually granted when the suitability of a parent is questionable. When a parent is granted unrestricted access, then that means he can visit the child unsupervised. Access to the child could also include having the child at weekends or during holidays. All of these would be dependent on the order made by the court.

2.    An order granting joint custody to the parents. Where the parents have been able to convince the court that they both have the best interest of the child in mind and there is no evidence before the court disqualifying either party from being awarded custody, then the court could make an order granting joint custody of the child to both parents. In order to give effect to this order, the court would usually give one parent the care and control of the child while the other parent would be given the responsibility of the child’s maintenance and education. The parent who has the care and control of the child has physical control of the child and gets to make certain decisions in respect of that child’s care, while the parent with the responsibility of maintenance and education amongst other things, pays the child’s fees, provides the resources for the care of the child and makes decisions about the education of the child.

It is important to note that the courts are of the opinion that the custody of the child is a divisible component. This means that the court can deal with each constituent component of custody differently. Thus, the court can award the religious upbringing of the child to one parent (especially where the parents are of different religions), the education to another, while the control and care of the child is awarded to another. The order to be made by the court would be dependent on the circumstances of each case.

In divorce proceedings, the law is concerned about the child. In determining who would have custody of the child, the paramount consideration of the court is usually the child. The court would consider the interest and welfare of the child above any other factor. In order to determine what would best protect and preserve the interest and welfare of the child, the court would consider the following factors: emotional attachment to a particular parent, the desirability of siblings growing up together in the same home, the adequacy or inadequacy of the facilities which would be made available to the child for his or her emotional, educational, physical, moral, spiritual and social development. The court would also be guided by the peculiarities of each individual case.

Sometimes, it is usually the case that men seek custody of the child of the marriage on the ground that they are more economically independent than the women, and the women just give up the fight for custody of the child since they are less economically independent; this should not be the case. The courts have stated that great comfort (this means wealth or greater financial security) is not the criterion for measuring the welfare of a child. Where a parent can provide a home and the necessities of life for a child, then such a parent would not be deprived of custody unless that parent is guilty of a misconduct. This is the importance of asking for maintenance. As earlier stated, a man has a duty to maintain his child. So if the woman seeks to have custody and lacks the resources to care for the child, then she should seek custody as well as maintenance for herself and the child of the marriage.

Custody is not usually granted to a parent to punish the other parent whose conduct has led to the dissolution of the home. It is not decided based on the right or wrong of a party’s conduct. As earlier stated, it is determined by having recourse to what would best serve the interest of the child. There have been instances where women have shied away from seeking custody of the child of the marriage because of adultery or some other reprehensible conduct of theirs. As much as adultery is reprehensible, the courts have consistently held that adultery without more does not make a person an unfit parent.  It is important that, during divorce proceedings, parents who desire to have custody of the child should endeavour to be present in court, produce credible evidence showing that they are good parents and, where necessary, testify to their fitness as parents. The courts have stated that the presence in court of a parent who wants to be awarded custody is imperative as it affords the court an opportunity to judge his/her character. If there exists any evidence of acts of either of the parents which impugns the character of the parent in relation to the exercise of care, control and supervision of the child, it should be presented to assist the court in granting custody to only the fit parent. 

The courts are usually more inclined to grant custody of children of tender years to the mother. But this does not mean that the court would not grant custody to the father in deserving cases.

Irrespective of whom custody has been granted to, a parent, family member or anyone who has the best interest of the child at heart can apply to the court to review a custody order if there arises any such need.

It is only the court of law that has jurisdiction to dissolve a statutory marriage. However, some other issues can be resolved by the parties through mediation before commencing an action for dissolution of the marriage or during the pendency of a petition for the dissolution of the marriage. Issues such as the amount to be paid to a spouse for the maintenance of the spouse and children when the marriage is dissolved, custody and access to the children and settlement of property, can be amicably resolved through negotiation and mediation. When the terms are agreed upon, these terms can be submitted to the court and made a consent judgment. A consent judgment means the terms of settlement agreed upon by parties which the court gives accepts by making it a judgment of the court thereby making it enforceable.

In Lagos state, the existence of the Multi-Door Court House is a system that provides a platform for alternative dispute resolution making it possible for litigants to reach an amicable agreement outside of the court room.

Divorces can be nasty and having to fight dirty in public, especially when children are involved, is a horrible experience. Mediation gives parties the much needed privacy and atmosphere to amicably resolve certain issues on their own terms, while still dissolving their union in court. Children are spared the agony of having to be examined and cross-examined in public by total strangers. They are also spared the distress of having to lie to please one parent in the battle for custody. They are spared the sorry sight of having their once happy parents being painted as unfit and unsuitable parents. This preserves the image of the parents in the child’s eyes and saves the integrity of the family image. Parties are therefore encouraged to explore and utilise the Lagos Multi-Door Court House system for peaceful and private resolution of certain aspects of their matrimonial issues as this preserves the integrity and dignity of the parties, and affords the children of the marriage an opportunity to adjust and transition easily.

 

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