FAMILY LAW 1.4 LEGAL EFFECTS OF MARRIAGE

• Isochukwu
• 1
• Family Law I

LEGAL EFFECTS OF A MARRIAGE.

The legal effects are present in statutory, customary and Islamic marriages. They shall be taken one by one.

1. Consortium which includes; ccsm
   • Change of name.
   • Cohabitation
   • Sexual intercourse
   • Mutual defense
2. Effects in criminal law
3. In the law of contract
4. In the law of tort
5. In citizenship.

 

1. CONSORTIUM

A number of rights duties and obligations imposed on married spouses are collectively called consortium.

• Change of name: a married woman may use her husband’s name or surname even after separation. Except it is used with the intent to defraud.
• Duty to Cohabit subject to the circumstances of the parties. “State of things” for example, military service. The parties may mutually consent to live apart. Dunn v. Dunn. R v. Creamer. Desertion may result from wilful and unjustified refusal to cohabit without the intention to resume cohabitation.
• Sexual intercourse: the parties have a duty to consummate till separation. Failure to consummate may constitute a ground for nullity Section 15 (2) of the Matrimonial Causes Act. But impotence after consummation does not constitute a ground for nullity. Section 6 of the Criminal Code allows marital rape. The Lagos law has repealed this. Sexual demand should be reasonable. R v. Miller. At customary law, each spouse is expected to submit to the other’s reasonable sexual demands.
• Mutual defense: use of reasonable force to prevent actual threat or violence to a spouse on his presence.sc 32(3) of the Criminal Code see also Section 33(2) of the constitution.

REMEDIES FOR INTERFERENCE WITH CONSORTIUM.

Enticement: Some positive and wilful act of a third party that leads to the separation of the spouse. The third party must have intended the separation. Ignorance of marital status and honest advice given on request can be a defense. The principles of humanity may also be a good defence that the spouse had ill-treated his wife.

 

DAMAGES DUE TO DEFENDANT’S TORT

In McNeill v. Johnstone,

the plaintiff had to resign from his work in order to cater for his wife who was negligently injured by the defendant. The court held that the husband could recover damages for loss of earnings.

The damages awarded are usually subject to the rule of remoteness of damages.

 

DAMAGES FOR ADULTERY

Section 31 of the Matrimonial Causes Act provides that a husband or wife may claim damages against a co-respondent that has committed adultery with his wife. Provided that;

• The claim must be made in a petition for divorce alleging that the spouse has committed adultery.

Bamgbala v. Bamgbala- in this case, the plaintiff’s petition did not succeed because he brought it under a petition for judicial separation instead of divorce.

• 31 (2) such adultery must not have been condoned. (condonation is an absolute bar in the granting of a divorce decree)
• 31 (3) the proceeding must be instituted within 3 years. William v. William. The failure to prove that the adultery alleged occurred within 3 years was fatal to the case.

In calculating damages for such, the marital state of affairs, other factors like; (the value of the wife, injury to feeling, rarely the wealth of the co-respondent, the intention of the co-respondent, whether he was aware that the woman was married) and ultimately, the claimants statement of amount of damages claimed are taken into consideration.

At customary law (marriages) there is no specified form of action. The balance usually weigh in the favour of the man as where the husband is the one that commits the adultery, the woman may have no special right of action in some customs. Elders may sit and decide whether the third party should pay some money to the husband. If the marriage breaks down because of the wife’s adultery, the husband may be entitled to recover the bride price paid. Chawere v. aihenu and Johnson.

 

The right of consortium of the parties can be lost if they have mutually agreed to live apart or they have been judicially separated.

 

2. RELATIONSHIP IN CRIMINAL LAW.

Section 33 of the Criminal Code provides that a wife of a statutory marriage is not criminally liable for acts which her husband compels her to do in his presence. Except it is a murder or an act that can cause grievous bodily harm.

Section of 10 the Criminal Code provides that a wife of a statutory marriage does not become an accessory to a crime by helping her husband to escape punishment.

Section 34 of the Criminal Code provides that there can be no conspiracy between husband and wife of a Christian marriage alone. Except a third party has been introduced. See Keshiro v. IGP.

Section 36 of the Criminal Code provides that there is no theft between spouses of a Christian marriage except the intention to defraud is an element. They cannot sue themselves for a criminal offence during the continuance of their marriage.

Section 6 of the Criminal Code provides that there is no rape between husband and wife.

 

3. RELATIONSHIP IN CONTRACT:

At common-law, the doctrine of unity of spouse (legal unity). As they were seen as one legal person, incapacity to contract with each other, neither can they sue for enforcement.  Any previous contract between them becomes void upon marriage. They both had to be joined as co-plaintiff or co-defendant in an action.

In butler v. butler,

The husband sued his wife to recover money loaned to her before and after marriage. The court held that he could only recover the money loaned after marriage as that loaned before marriage was irrecoverable. The MWPA has intervened to repeal this rule thereby rendering a woman liable to her husband for ante-nuptial debts.

The intervention of the Married Women’s Property Act 1882 and the Married Womens Property Law 1958 that applied to the loood states. Butler v. Butler.

• Section 1, a woman can contract with any person in respect of her private property as if she were a feme sole.
• Removed the rule in butler v. Butler thus making the wife liable to her husband in respect of ante-nuptial debts.
• There is no need for them to be compulsorily joined in a suit.

Generally, marriage does not automatically make the wife an agent of her husband- Debenham v. Melon.

However,

There is a rebuttable presumption that she can pledge his credit in areas of necessity and house-keeping. Especially

• Where he has expressly authorized her,
• Ratified her previous pledges, or
• Represented her to be such to third parties.

“Necessaries” depends on the standard of living the man has set/represented not his actual salary or earnings.

The presumption can be rebutted if the husband shows that

• He has expressly forbidden her or the trader to pledge his credit
• There is sufficient allowance and provision for the article or the purchase of the article in question.
• The wife has sufficient earnings to afford what she pledged.
• The agent was dealing with the woman personally and not as his agent.
• The items bought by the woman cannot pass for necessaries.

A woman that has been deserted can pledge the credit of her husband when she cannot afford what she is pledging.

The authority of the wife can be expressly terminated by

• Express prohibition. Irrespective of the knowledge of the trader.
• Insanity of the husband. When the trader has become aware.

In drew v. nunn,

The wife had apparent authority to pledge the husband’s credit. The husband subsequently became insane. The trader did not know that the husband had become insane. When he recovered from the insanity, it was held that the husband was liable to pay. Toynbee

• Death of the husband.

 

4. RELATIONSHIP IN TORT:

At common-law, the spouses were seen as one. No tort can be committed by a spouse against another. No action can be brought against one’s spouse. The Women’s Property Protection Act and the Women’s Property Law that applies to the LOOOD states. Section 1 of the act makes a woman capable of being sued as though she were a feme sole. Thus a married woman can sue for the protection of her private property. The husband is not liable for any tort committed by his wife and should not be made a party to a legal proceeding in respect of such tort.

Statutory provisions exists as to the determination of who owns property between a husband and a wife.

 

Relationship in the law of evidence:

• Section 163 of the Evidence Act provides that Spouses cannot be compelled to give evidence as regards corroboration/communication that occurred between them in the course of marriage. Except

With the consent of the spouse who made it or

The suit is against one another. Theodoropalaus v. theodoropolaus. Eg adultery suit.

• Each spouse is a competent witness for the other. R v. Idiong and umo.

 

In citizenship, Section 26 of the 1999 constitution provides that a woman that has been married to a Nigerian citizen with the intention to be domiciled in Nigeria can acquire citizenship by registration. Once citizenship can be proved, one must not be denied of it- shugaba v. Federal Minister of Internal Affairs.

Same sex marriage

Same sex marriage can be seen as the voluntary union for life of two people of the same sex to the exclusion of others.

Practicing males and females are commonly referred to as homosexuals or lesbians. They are usually collectively termed as being gay.

In Nigeria, the same sex prohibition act passed on December 2013, penalizes such and declares it to be illegal. Imposing various punishment reaching up to 14 years imprisonment for those that engage in such and up to 10 years for those that witness such union- Section 5 of the act.

Section 4 of the act prohibits the registration of gay clubs and also public displays to such effect.