FAMILY LAW 1.5 MATRIMONIAL CAUSES (1) JURISDICTION
NOTE THAT FOR THE TOPIC; “MATRIMONIAL CAUSES, WE SHALL BE LOOKING AT; JURISDICTION, VOID AND VOIDABLE MARRIAGES, DIVORCE, ETC.
It has been the attitude of the courts before dealing with matrimonial causes to attempt to reconcile the parties. Section 11 of the Matrimonial Causes Act has made a similar provision. The judge may with a view to effecting reconciliation between the parties and with their consent, interview them in his chambers in an informal manner. Admissions made during the reconciliation is not admissible as evidence. This provision seems far-fetched as in practice, there may hardly ever be time.
THIS TOPIC SHALL LOOK AT JURISDICTION.
MATRIMONIAL CAUSES JURISDICTION:
Unlike contract, marriage cannot be simply brought to an end by the agreement of the parties. There are certain process that must be performed. Brief history.
Following the cession of Lagos to the British in 1861. Matrimonial causes regulated by English law. The laws were fashioned to meet the English needs. The introduction of the Matrimonial Causes Act in 1970 which is the first indigenous law in this field.
The act defines matrimonial causes to include;
Proceedings for a decree of dissolution, separation, nullity of marriage restitution of conjugal rights.
By virtue of the 1999 constitution, only the Federal government can legislate on matters relating to statutory marriages in Nigeria.
Section 2(1) of the Matrimonial Causes Act confers jurisdiction to entertain statutory matrimonial causes on the high court of every state in the federation.
Courts of summary jurisdiction can enforce maintenance orders.
The jurisdiction to entertain matrimonial causes is assumed based on domicile (or residence as the case may be) of the parties. The parties to a suit cannot by consent confer jurisdiction on the court.
In respect of customary marriages, all the customary courts in Nigeria have original jurisdiction to entertain such matrimonial causes. Appeals lie to the customary courts of appeal. See the various customary court laws. The native laws and customs are applied when it is not repugnant to natural justice, equity and good conscience. When it is not inconsistent with a law being on force.
CLARIFICATION OF SOME ISSUES
Nationality: the political entity to which a person owes allegiance to and is under its protection. It is not domicile.
Residency: a place where someone lives and is physically present. But still has to return to his domicile. For example, a student of unilag resident in one of the halls. The three may coalate where a Nigerian citizen is physically present in his domicile.
Domicile: a person’s fixed and permanent home which differs from nationality or residence. To acquire domicile, the party must establish residence alongside the intention to remain there permanently- fonseca v. passman. Although a person can have more than one domicile, he can only have one domicile at a given point in time. A person must always have a domicile.
Domicile of origin: a domicile received at birth. It is never destroyed can only go dormant and then revives when the domicile of choice is lost. If it is a legitimate child, the domicile of the father at the time the child was born… it changes with the domicile of the father. Where illegitimate, the domicile of the mother- Udny v. Udny. Where the parents are unknown, the domicile of the country in which he is born.
Married woman’s domicile: on marriage, a woman automatically acquires the domicile of the husband and changes with that of the husband except the marriage is void ab initio. Upon divorce, she retains the husband’s last domicile until she acquires a new one.
Domicile of choice: the infant upon attaining majority or the woman upon divorce can acquire a domicile of choice. To do such,
- He/she must establish residence in a new place
- And have the intention to make it his permanent home.
The domicile of origin remains effective until the new domicile of choice is acquired. The domicile of origin revives when the domicile of choice is lost.
Upon reading the provision of Section 2 and Section 3 of the Matrimonial Causes Act, we can understand that there is one Nigerian domicile rather than the states constituting separate domiciles.
Section 2 (2) of the Matrimonial Causes Act provides that the matrimonial causes can only be instituted by a person domiciled in Nigeria. He may institute proceedings in any high court of the states in Nigeria.
Section 9(1) goes further to state that if the proceeding is instituted in more than one court, one court can stay the proceeding.
Section 9(2)that the court may transfer the case to another high court in another state for the convenience of the parties and in the interest of justice. ( forum convenience). So that the parties shall not be frustrated- adegunroye v. adegunroye.
Jurisdiction shall only be based on residence in respect of a woman that has been residing in Nigeria for not less than three years and at the time of instituting the proceedings.