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22 Jan

CIVIL LIT WEEK 19 MATRIMONIAL CAUSES

WEEK 19 MATRIMONIAL CAUSES.

:: GENERAL PRINCIPLES.

Item 61 Exclusive Legislative List; therefore applicable laws include the Matrimonial Causes Act 1970, Matrimonial Causes Rules 1983, Marriage Act, etc.

By Section 48 MCA, it applies only to monogamous marriage eschewing customary[1] and Islamic Law marriage. Monogamous Marriage is; the voluntary union for life of one man and one woman to the exclusion of all others-Lord Penzance in Hyde v Hyde. Section 18 IA,

In Motoh v Motoh; it was held to include; marriage in Registry; – Special License; – Marriage in Licensed place of worship all in accordance with requirement of statute/law. I.e. Notice-Registrar’s Certificate-Celebration in above places in presence of at least 2 witnesses between 8-6 or 10-6 for marriage registry-Marriage Certificate

By Section 2(2) MCA; A person may petition for the Matrimonial Relief of:

Dissolution of Marriage: on the (only) ground that the (valid) marriage has broken down irretrievably-Harriman v Harriman. This ground may be hinged on any one or more of the following (listed under Section 15(2)[2]);

– The respondent has wilfully and persistently refused to the consummate marriage[3];

– The respondent has committed adultery and the petitioner finds it intolerable to live with him for that reason[4].

– The respondent behaves in a manner that makes it unreasonable for the petitioner to live with him: O’Neil v O’Neil, Oladetohun v Oladetohun. e.g. rape, sodomy, bestiality, narcotic, frequent convictions for crime, intentional infliction of harm on the petitioner, unsound mind and unlikely to recover, etc-Section 16 Matrimonial Causes Act. Condonation may be inferred if lived together for up to 6 months from the cconduct complained of.

– Respondent has deserted[5] the petitioner for at least 1 year before the petition was filed: it should be intentionally, unjustifiably (e.g. running for harm) and continuously

– The parties have lived apart for 2 years immediately preceding the petition and the respondent does not object to a decree being granted[6];

– the parties have been apart for a continuous period of 3 years immediately preceding the presentation of the petition;

– the respondent has for (at least) a year refused to comply with a decree of restitution of conjugal rights; the respondent has been absent for at least 7 years and is presumed dead (164 EA).

The parties to a petition for divorce are the spouses. A co-respondent against whom the party wishes to claim damages for adultery may be joined.

Nullity of void or voidable marriage: a marriage is void when it is inexistent in law for non-compliance with certain substantial requisites are lacking (like where parties are within prohibited degrees of consanguinity[7], a party is already married to another person at the time of the marriage, immaturity, no real consent of a party (maybe for mistake, duress, fraud, mental incapacity to understand marriage, age mental capacity, etc.)) or void for non-compliance with law of the place of celebrating the marriage in celebrating the marriage. Court should just declare same.

To be voidable means it is valid until declared invalid where court is satisfied that at the time of the marriage, a party suffered from some defect like insanity, venereal communicable disease, wife pregnant for another person, party incapable of consummating the marriage etc-Section 5 Matrimonial Causes Act. Voidable at the instance of the spouse that is not suffering the incapacity[8].

– Judicial Separation: divorce mensa at thoro[9]. To only suspend conjugal rights without affecting the status rights and obligations of the marriage-Section 41-44 MCA. i.e. to relieve the petitioner from the obligation to cohabit with the respondent while the order lasts during which either party may discharge decree by voluntarily resume cohabitation or decide to finally dissolve the marriage both on application to the court for order discharging decree or dissolving marriage… but neither can remarry another person therein. On reasons stated in Section 15(2) MCA and 16(1) MCA.

– Restitution of Conjugal Rights: for order of court asking respondent to terminate desertion or parties to resume cohabitation. Petitioner applies (Form 7) satisfying the court that he/she sincerely desire conjugal rights and written request in this regard has already been made to the respondent or special circumstances justifying grant.

– Jactitation of Marriage: to serve as an injunction to restrain the respondent from parading himself/herself as the spouse of the petitioner. Petition should state that petitioner is not married to respondent, petitioner has not acquiesced or made like representation. Particulars of representation should also be put.

:: JURISDICTION

By Section 2 Jurisdiction is vested on the High Court[10] of any State or FCT[11] in Nigeria provided the petitioner is domiciled (i.e. permanent home[12]) in Nigeria. This is because domicile is the basis of jurisdiction. For the purposes of Matrimonial Causes, domicile in any state of the Federation is deemed to be domicile in Nigeria. No requirement that the marriage should have been contracted in the state.

The whole of Nigeria is regarded as a single jurisdiction.

:: CONTENTS OF (AND MATERIAL FACTS TO BE PLEADED IN) MATRIMONIAL PETITION (Form 6).

– Details of Parties, Particulars of marriage (date, place, manner of celebration) and previous marriage if any (additionally manner of dissolution), details of birth of parties, domicile of the parties (which must be within Nigeria), cohabitation (and date of ceasing if ceased), particulars of children of the marriage, particulars of previous proceedings if any, statement that petitioner has not condoned or connived nor is there collusion, particulars of reliefs sought (including settlement, damages, custody, maintenance, etc.), date (which is filing date) and signature (by LP), verifying affidavit (written on the petition).

The documents to accompany a petition include Or V; – Notice of Petition (signed by registrar and seal of court; – Copy of Marriage Certificate (or explanation); – Verifying Affidavit (confirming the truthfulness of the matters stated in the petition; – Respondent’s acknowledgment of service[13], Certificate relating to Reconciliation; Discretion Statement (it appears to be a confession by any of the parties to adultery. Should be discreet and delivered to registrar in sealed envelope with suit number on it).

:: PROCEDURE (COMMENCEMENT TO CONCLUSION). Note these whenever u discussing petition.

The MCA enjoins parties and the court to encourage reconciliation-Section 11 MCA. 14 days is allowed for this. There may be interview in chambers, etc. Correspondences exchanged not admissible to proceedings. Proceedings may be adjourned, etc. Judge that took part shall subscribe to secrecy and cannot adjudicate except with consent of the parties.

Matrimonial Proceedings is commenced by petition-(44 MCA) which the petitioner files as in Form 6. Note the restriction on petitioning for dissolution and nullity. Respondent files an answer (he may include a cross-petition. He may also answer under protest). Petitioner may file a reply to the allegations in respondent’s answer to which respondent may file a rejoinder[14].

Discretion Statement should be filled, signed, put in a sealed envelope (signed by LP with suit number written) and filed where a party to the proceeding is alleged to have committed adultery (as in Form 30). See Or 11 MPR.

Then there is a compulsory conference where it is a nullity suit or the matrimonial suit includes issues relating to maintenance (of spouse or child), settlement of property, custody, guardianship… and parties are not in agreement as to the order that should be made by the court-Or 11.

Next: petitioner requests that the suit be set down for trial (defended or undefended Form 31 or 32 Respectively) and state the number of days he would require for trial.

A person that is not a prty to the proceedings may intervene (62 and 65 MCA) e.g. AG or other person who may be able to prove facts relevant to the proceedings (Form 42 and 43 respectively).’

The Decree: upon conclusion of trial. Nisi first then made absolute after 3 months. The other party must have been personally served a copy of the decree to be enforceable against him. Note the form.

To enforce money, attachment and sequestration may be used-Or 14 MCR.

:: DRAFT MATRIMONIAL PETITIONS AND REPLY

[1] Conducted according ot the custom of the place of the parties provided there is payment of bride price, ceremony of giving ourt the bride and carrying the bride to the house of the groom-Motoh v Motoh. Divordce here varies and bride may be returned back to her parents (maybe with bride price returned… not so sure).

[2] Note however that a petition for dissolution of marriage cannot be presented within 2 years of the marriage except with leave of the court (gotten by motion exparte with affidavit (showing hardship if application not granted, grounds upon which petition is based, whether previous application has been made and whether successful, details of any child of the marriage, whether reconciliation has been attempted, other particulars that would assist the court.… granted where exceptional hardship would be occasioned by refusal-Akere v Akere, Majekodunmi v Majekodunmi) or the reason is for persistent refusal to consummate, intolerable adultery, rape, sodomy or bestiality or the petition is by way of cross-petition. S 30 Matrimonial Causes Act.

[3] Consummation does not mean inability to have sex-Hardy v Hardy. It means refusal to copulate ever since the marriage. After repeated demands by petitioner. it

[4] Adultery cannot be a ground for divorce if it happened up to 3 years ago as condonation may be implied. Circumstantial evidence is enough to prove adultery e.g. admission, respondent cohabiting with a third party, birth of a child but husband had no access to her within the material time vice versa though, medical test of paternity from another woman, STD. The test of intolerability is subjective (not reasonable man’s test). Fajembola v Fajembola (with houseboy then with driver).

[5] Desertion is intentional separation with intention of bringing cohabitation to an end. It appears there may be de-facto desertion where they are in the same roof but emotions apart-Hopes v Hopes, Walker v Walker.

[6] Brief periods of reconciliation truncate any period of separation.

[7] Full or half-blood relationship.

[8] The person suffering from the disability cannot present the petition.

[9] This is what ecclesiastical churches were granting as divorce was not contemplated.

[10] Although a court of summary jurisdiction can enforce maintenance orders of HC.

[11] Although HC can transfer the case to another state HC where convenient and deserving in the interest of justice.

[12] With intentionWhich may be conferred by parentage or marriage

[13] This gives him locus standi and makes the suit be defended. Failing with; vice versa.

[14] These four documents are the pleadings.

Isochukwu

Quite eccentric really

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