Family Law I (2014) Answers (Unilag)
FAMILY LAW PAST QUESTIONS
UNIVERSITY OF LAGOS
FACULTY OF LAW
LLB DEGREE EXAMINATION
FIRST SEMESTER EXAMINATION 2014/2015
PPL 303: FAMILY LAW
ANSWER ANY FOUR QUESTIONS TIME ALLOWED 2HOURS 30 MINUTES
- The epicentre of family life has always revolved around the institution of marriage.
Attempt a definition and description of marriage from a legal perspective.
- Janet and Akin started a love relationship six years ago. After a while, Janet moved into Akin’s house where she has been living for the past 10 months. One Saturday afternoon, Janets friend, Meg brought her wedding invitation to Janet. On sighting the invitation card, Janet started calling Meg various derogatory names suggesting that meg is going into slavery by entereing into a statutory marriage with her boyfriend Dele. Janet said “cant you see me, I am smart, by refusing to enter into any form of slavery: it is better to live together as lovers that trading my freedom.”
Educate Janet on the rights and obligations peculiar to persons who have acquired that status of a husband and wife through statutory marriage.
- “The issue of domicild is a threshold one which must first be considered because if it is found that the petitioner is not domiciled in Nigeria, the question whether the trial court has jurisdiction to entertain divorce petition will forthwith be settled and that will be the end of the matter” Bhojwani v Bhojwani. Examine this statement, highlighting the various types of domicile and its significance on jurisdiction in matrimonial causes.
- Aduke, a 15 year old girl who just finished her S.S. 3 exams became bored of staying at home and waiting for her result. She decided to engage in some sporting activities and thus enrolled in the playing of Badminton. It was in one of the rehearsals that she met Coach Jugunu, a 40 year old indian who lives in Nigeria. Aduke and Jugunu started dating and after six months, Jugunu proposed marriage to Aduke. They both decided to have a customary law marriage to honour Aduke’s father who is a high chief in his village. On the wedding day, Jugunu refused to pay the sum of N50,000 (Fifty Thousand Naira) as bride price because according to him it conflicts with his faith as a Hindu. Rather, he brought three purses full of golden chain earrings and bracelets. After the ceremony, Aduke’s father refused to hand over Aduke to Coach Jugunu insisting that Aduke stays over in his house till she gains admission into the University. Jugunu initially agreed but after three weeks demanded that Aduke moves into his house. Aduke’s father has persistently refused.
Jugunu became annoyed and decided to dissolve the marriage. He filed an action at the customary court.
Aduke’s counsel responded to the petition by stating that the purported marriage was fundamentally defective.
Identify and discuss the defects.
- With the aid of relevant authorities, distinguish between void and voidable marriage.
- Under the Matrimonial Causes Act, there is only one ground for the dissolution of a marriage – that the marriage has broken down irretrievably. However, section 15 (2) stipulates eight facts proof of which will enable the court to come to the conclusion that the marriage has broken down irretrievably. With the aid of relevant authorities, discuss any of the facts as constituted under section 15(2) (a) or section 15(2)(b) of the Act.
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ANSWERS TO FAMILY LAW I 2014/2015
ANSWER TO QUESTION ONE (1).
The Family is regarded as the smallest unit in the structure of the society consisting of people related by blood, marriage or adoption. In our discussion, we shall dwell on marriage being one of generating family.
Section 18 of the Interpretation Act defines marriage as; “marriage recognized by the law of a place where it is constituted to be a voluntary union for life to the exclusion of others during the continuance of the marriage”.
Black’s law dictionary defines marriage as; “the legal union between one man and one woman”.
Perhaps a more illuminating definition is that provided by Lord Penzance in Hyde v Hyde where he defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others”.
The above definitions are predicated on the Whiteman’s concept of statutory/Christian marriage which Nigeria has inculcated as a result of her colonial history (and relative adoption of) English Law first with the Cession of Lagos to the British in 1861.
The Nigerian system of Marriage comprises of Monogamous and Polygamous. Only the latter (which comprises of Customary and Islamic Law marriage) allows a man to marry more than one wife.
Customary Law Marriage is governed by the relevant (dynamic and unwritten) custom.
Islamic Law Marriage is governed by the (fixed and written) Islamic Law with the Maliki School prevailing in Nigeria-Re Estate of Alayo Deceased.
From the general manifestation and intendment of the Legal regime on the Institution of Marriage in Nigeria, ( especially various Sections of the Matrimonial Causes Act, Marriage Act, Interpretation Act, Same Sex Marriage Prohibition Act, Criminal Code, Case Laws, etc.) To wit:
One: The contract of Marriage is regulated by Law and the law strives to enforce it-Obiekwe v Obiekwe.
Two: Marriage is a voluntary union.
Three: Marriage creates status, reciprocal rights and obligations fixed by law. Like Cohabitation, change of name, consummation, mutual defence, to mention a few. Section 15 MCA for example, Akpan v Akpan, Hope v Hope.
Four: There are essential pre-requisites/capacity which parties to a marriage must possess. Some of which include; Single Status, non-consanguinity, maturity, genuine consent, heterosexuality, to mention a few. These can be found in Section 35 and 48 Marriage Act, Section 3 MCA, Same Sex Marriage Prohibition Act, Fonseca v Passman, Onwudinjo v Onwudinjo.
Five: There are certain formalities and ceremonies needed for the solemnization of marriage and the valid acquisition of the status of husband and wife. A usual requirement is for the parties to effect requisites notices, registrar’s certificate, and marry in a licensed place of worship or registry-Section 7-33 Marriage Act, Obiekwe v Obiekwe. For customary law marriage, there should be payment of bride price and official handing over of the bride.
Six: Conversely, there are certain formalities for the termination/vitiation of marriage which are loosely termed Matrimonial Causes (dissolution, separation, nullity, restitution of conjugal rights, etc) and largely regulated by the Matrimonial Causes Act, customary law or Islamic Law as the case may be.
In conclusion, the role of the Family in the Society cannot be over-emphasized same applies to the role of marriage in bringing about family life.
ANSWER TO QUESTION TWO
Janet, I understand the direction you are coming from, moreso as the institution of marriage (and indeed statutory marriage) is heavily regulated by the provisions of the law notwithstanding the credulous wishes of the parties. But the truth is that certain rights and obligations are conferred on spouses of statutory marriage which may not be acquired by mere love, sex and living together.
In this discourse, I would educate you on these rights and try to convince you that marriage is not a cage and (in fact) statutory marriage is more advantageous to females having regard to the Nigerian Context.
Lord Penzance in; Hyde V. Hyde defines marriage as “the voluntary union for life of one man and one woman to the exclusion of all others”. A similar (though not exact) definition is provided in Blacks’ Law Dictionary and Section 18 of the Interpretation Act.
The sort of marriage envisaged by these definitions is commonly referred to as “Monogamous/Statutory Marriage”. This sort of marriage was introduced to Nigeria as a result of our contact with the British. First with the Marriage Ordinance 1914 (after the amalgamation of Nigeria in the same year) and presently with the Marriage Act 1970. It is the same sort of marriage which your friend meg is about to enter into.
I would not bore you with legal jargons, but the truth is that upon a successful marriage in accordance with the Statutory provisions and devoid of legal impediments (like age, consent, sanity, consanguinity, single status, etc.), there are certain rights and obligations conferred on the parties to wit:
1. Consortium Rights and Obligation: which can generally be referred to as the right of spouses to company and affection which includes:
* Change of name: to the surname of the husband.
* Duty to Cohabit (live together)-Dunn v Dunn. A spouse’s prolonged and unjustified absence may be construed as desertion.
* Duty to consummate (have actual normal sexual intercourse)-Akpan v Akpan. Incapacity to consummate may constitute a ground for nullity. Although marital rape has not been officially criminalized (Section 6 Criminal Code), Sexual demands should be reasonable-R v Miller. I’m sure this should not be an issue with you because you have been dating Akin for over 6 years.
* Mutual defense: Akin is allowed under the law to use reasonable force to defend you from violence -Section 32(3) Criminal Code.
Interference with consortium can entitle the aggrieved spouse to damages. For example; Enticement, Adultery-Section 31 MCA allows a spouse petitioning for divorce to claim damages against a co-respondent who committed adultery with the spouse-William v William.
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. In the Field of Criminal Law: Spouses of statutory marriage under the “Criminal Code” cannot be held to:
* Be an accessory her husband’s crime-Section 10.
* Conspire between themselves-Section-34 Criminal Code.
* Have stolen each other’s property (unless there is intention to defraud)-Section 36.
* Rape his spouse-Section 6 Criminal Code. Note that Lagos has removed this section.
3. IN THE FIELD OF CONTRACT:
* Common Law regards spouses as one with incapacity to contract with (or sue) each other-Butler v Butler. Furthermore requires the other spouse to be joined as co-defendant or co-plaintiff in the other spouse’s suit. Note however that the Married Women’s Property Act 1882 has repealed the foregoing making the woman a feme sole and legal personality capable of suing and being sued as can be seen in Section 1 of the Act.
* The wife can be the husband’s agent and pledge his credit/bind him in the purchase of necessaries especially she is out of funds and where he has expressly or impliedly authorized her.
4. IN LAW OF TORT: One spouse could not bring an action in tort against the other spouse. This has been repealed by the Married Women’s Protection Act discussed earlier.
5. IN THE LAW OF EVIDENCE: Under the Evidence Act;
* Spouses cannot be compelled to disclose communications between each other except the suit is against one another or the spouse consents-Section 163.
* Each Spouse is a competent witness for the other-R v Idiong Umo.
6. IN CITIZENSHIP: a foreigner married to a Nigerian Citizen with the intention to be domiciled in Nigeria can acquire citizenship by registration.
Janet, it may also interest you to know that if issues arise in your marriage or if Akin dies, you would be in a better position if you have been married under statute as you can be entitled to Maintenance, Settlement and Division of his Property amongst others as provided under the MCA (especially section 70) and other statutes-Olu-Ibukun v Olu-Ibukun.
In conclusion Janet, it appears you have been with Akin for a long time and are even living with him. This circumstance of cohabitation (especially in the area of the law of evidence) can give rise to the presumption of marriage-Onwudinjo v Onwudinjo. But that is honestly still a probability. To enjoy the various advantages discussed above, you just have to concretize your union with Akin in accordance with the law. More properly so by a Statutory Marriage so that certain provisions can apply to you-section 114(6) MCA.
ANSWER TO QUESTION THREE
Matrimonial causes includes proceedings for a decree of dissolution, separation, nullity restitution of conjugal rights, etc.-Section 114 Matrimonial Causes Act).
A divorce petition, seeks to dissolve the marriage on the ground that it has broken down irretrievably for one or more reasons as listed in Section 15 of the Matrimonial Causes Act.
Such proceedings are usually instituted by a petitioner by way of a petition to the proper court with jurisdiction (which by virtue of Section 2(1) of the Matrimonial Causes Act is) the High Court of any state of the Federation.
Jurisdiction has been defined as the power of a court to hear a matter-Madukolu v Nkemdilim.
Section 2(2) Matrimonial Causes Act requires the petitioner to be domiciled in Nigeria.
Note however that residence may suffice where a woman petitioner has been residing in Nigeria for not less than three years and is still doing so as at the time of instituting the proceedings-Section 7 MCA.
Note also that a deserted wife who was resident in Nigeria immediately before the marriage or desertion shall be deemed domiciled in Nigeria.
Note that for customary marriages, customary courts have jurisdiction and native laws and customs (that are not repugnant or contrary to existing law etc…) would be applied.
Note that Residency and Domicile are not the same thing.
Residency is where someone is physically present/lives albeit temporary as he still has to return to his domicile. E.g. An NYSCorper domiciled in Lagos but posted to Kano would be resident in Kano for the duration of his Youth Service afterwhich he would return to his permanent home-Lagos. Or a Nigerian who goes to UK for her Masters Degree Programme to return when done.
Domicile can be regarded as a person’s fixed and permanent home. Where he resides AND intends to remain permanently-Fonseca v. Passman.
The major distinction therefore is the presence of the intention to be permanently resident in a place in the concept of domicile.
Upon reading the provision of Section 2 and Section 3 of the Matrimonial Causes Act, we can understand that for the purpose of Matrimonial Causes, Nigeria (rather than each the constituent state) is regarded as one domicile. That is why the case can be instituted in ANY High Court. Although for congruence, the case may be transferred from the originating High Court to a more appropriate High Court in the interest of Justice-Adegunroye v Adegunroye, Section 9 Matrimonial Causes Act.
A person must always have A domicile at a given point in time. It may be
Domicile of Origin: which is permanently received at birth from the father or mother if legitimate or illegitimate respectively-Udny v. Udny.
Domicile of Marriage: on marriage, a woman automatically acquires the domicile of the husband.
Domicile of Choice: which is acquired upon the attainment of majority (or if a woman, upon divorcing her husband) where the individual establishes residence in a new place with the intention that it should be his/her permanent home.
Note that the domicile of origin revives when the domicile of choice is lost.
In conclusion, Domicile is important in Matrimonial Causes as the determination of Jurisdiction can be predicated upon considerations of the parties domicile.
ANSWER TO QUESTION FOUR
Marriage being the union of man and wife is a ceremonial institution which has to be assumed in accordance with the applicable law by capacitated parties.
This hypothetical scenario throws up both essential and formal validity questions pertaining to:
– The Age of Aduke.
– The Origin (India) of Coach Jugunu.
– The Refusal of Coach Jugunu to Pay Bride Price.
– The Refusal of Aduke’s father to hand her over Aduke to coach Jugunu.
– The Jurisdiction of the court.
– The general validity of their marriage.
Perhaps a preliminary elucidation would shed more light on these issues and assist in making the work brief.
Customary Law Marriage being a form of polygamous marriage is quite distinct from monogamous/statutory and Islamic Law marriage and it (Customary Marriage) is regulated by the applicable (dynamic and unwritten) Customary Law which mirrors an accepted usage-Estate of Alayo Deceased.
Customary Law marriage (to which this question relates) can be defined as the voluntary union for life of one man with one OR several wives.
Although customs are diverse and unwritten, it is generally accepted that payment of bride price and formal handing over of the wife signifies the conclusion of the marriage.
On the Issue of Aduke’s Age: A party to a marriage needs to have attained the age of majority. There are varying benchmarks. Section 23 and 24 of the Child Rights Act says 18, The Marriage Act (Section 12) implies 21 years. For the sake of customary law, we would use the Eastern States Age of Marriage Law which benchmarks age 16. Aduke, being 15 age appears not to have attained the age of marriage sufficient to make her capable of marrying or being given out in marriage.
On the issue of Coach Jugunu’s Origin:
On the Refusal of Coach Jugunu to Pay Bride Price: Section 2 of the Limitation of Dowry Law bride price as any property given to the parent of a girl on account of a marriage. In customary law, Bride price is necessary as it creates the status of betrothal.
On the Refusal of Aduke’s Father to Hand Over: as noted earlier, handing over is essential to the completion of customary law marriage- In the matter of marriage ordinance, Beckly and Abiodun
ANSWER TO QUESTION FIVE.
In Nigeria, we have two systems of marriage (Monogamous and Polygamous) occasioning 3 forms viz; Statutory, Customary and Islamic Marriage. The former being regarded as “the voluntary union for life of one man and one woman to the exclusion of all others”-Hyde v Hyde. In Customary and Islamic Law marriage, a man can marry more than one wife.
The fact remains that, there are certain requirements (formal and essential) which must be complied with, otherwise, such marriages may be regarded as void or be voided.
Something is said to be void if it is of no effect ab initio. While something is said to be voidable if its substance can be vitiated/nullified for one reason or the other.
In Derenville v. Derenville.
The court took time to differentiate between a void and a voidable marriage. A void marriage is one that has never been in existence. Thus void ab initio. A voidable marriage is one that can be annulled at the instance one or both of the parties. A void marriage does not need the courts to make it annulled… any decree to that effect is just restating the obvious. A voidable marriage need the courts to decree that it has been annulled… until such a decree has been made, the marriage remains in existence.
In simpler terms, where a marriage IS invalid owing to some defects, it is said to be void. Where it CAN BE invalidated owing to some defects, it is said to be voidable.
Grounds upon which a marriage may be void under Statue.
Section 3 (1) a-e of the Matrimonial Causes Act lays down 5 grounds upon which marriage celebrated after the commencement of the act may be void.
A, Where either of the parties is (already) lawfully married to a third party-Onwudinjoh v Onwudinjoh, Section 35 Marriage Act
B, The parties are within the prohibited degrees of affinity and consanguinity. Affinity occurs where the parties are related by marriage. Consanguinity occurs where the parties are related by blood respectively. For example Ade cannot marry his blood sister. The approval of the High court Judge can be sought in affinity cases and is granted in exceptional circumstances. In various customs, marriage between blood relations is also prohibited, no matter how remote the relationship is.
C, Failure to comply with the law of the place where the marriage is celebrated-Section 7-30 of the Marriage Act provides formal steps to take (ranging from filing form, registrar’s certificate, celebration, etc.) and Section 33 of the Marriage Act invalidates non-compliance. However, sub 2 of the same section provides that the parties must have willingly and knowingly acquiesced to the irregularity.
D, Real consent of either of the parties has not been obtained (due to duress fraud, mistake as to identity, insanity so as not to understand the nature of the transaction)-H v H. It is a crime to forcefully marry a person under Section 48 MA.
E, Either of the parties is not of marriageable age. Section 23 and 24 Child Rights Act provides maturity age as 18.
Section 33 invalidates such non-complying marriages. Obiekwe v Obiekwe.
Additionally, See Same Sex Marriage Prohibition Act which invalidates marriages between persons of the same sex. Same stand was also maintained in Corbett v Corbett.
Section 5(1) of the Matrimonial Causes Act lays down the grounds that makes a marriage celebrated after the commencement of the act (17th March, 1970) voidable. They include; where at the time;
A, incapacity to consummate the marriage: meaning that there should be complete sexual intercourse between the parties-Akpan v Akpan.
B, insanity/unsoundness of mind/epilepsy (thus unfit for the responsibilities of marriage) note the case of hupunu-wusu v. hupunu-wusu.
C, either of the parties is suffering from a venereal disease that is communicable. (decree can only be granted at the instance of the clean spouse)
D, or the wife is pregnant for a person other than the husband (voidable at the option of the husband. May be refused on ground of public policy).
For petitions b, c and d, Section 37 of the Matrimonial Causes Act provides that, to succeed, the petitioner must have at the time of marriage been unaware of the fact, the petition should be filed not more than 12 months from the date of the marriage or the date of knowledge of facts. Delay may be construed as waiver/approbation-G v M. In smith v. smith
Having sexual intercourse with the wife after her being pregnant for another man was seen to be a waiver on the part of the man.
At customary law, a marriage may be void where;
- There is lack of parental consent. It is the parents that receive the bride price.
- They are within the prohibited degrees of consanguinity or affinity. It is seen as an abomination in some customs.
- Non-payment of bride price except it is waived. Section
- A customary law marriage between a native and a non-native- fonseca v. passman, savage v. MacFoy.
- In Islamic law, a marriage where the girl can consent upon the attainment of majority is seen as voidable at the option of the girl.
Irregular (fasid) marriages in Islamic law occurs where a Muslim marries more than 4 wives. The marriage is neither void nor voidable it is only irregular until the man divorces one or more of the wives to bring it within the limit of not more than 4 once more.
in conclusion, the requrements for a valid marriage are sacrosant just as the instiuttion of marriage itself is. Clients are therefore advised to thread properly.
ANSWER TO QUESTION NUMBER SIX.
The Matrimonial Causes Act largely regulates Statutory/Monogamous marriage which can be regarded as a voluntary union for life of one man and one woman to the exclusion of all others”-Lord Penzance in Hyde v Hyde. Section 18 Interpretation Act provides a similar definition. The life of this union may however be terminated through one or more of the Matrimonial Causes/proceedings provided under the Matrimonial Causes Act.
Dissolution of Marriage occurs where either or both of the parties terminate the existing (valid) marital relationship.
Prior to the 1970 MCA, the English Celestial Court’s Matrimonial Offence Theory was in operation and provided that a marriage may be dissolved if a spouse has committed a matrimonial offence like adultery, cruelty, desertion, and so on.
Presently, the combined reading of Section 2 and 15 of the Matrimonial Causes Act would reveal that; where a valid Statutory Marriage exists, either of the parties (domiciled in Nigeria) who wishes to dissolve the marriage may approach any High Court in Nigeria by way of a petition for the dissolution of the marriage on the (ONLY) ground that the marriage has irretrievably broken down-Williams v Williams. Although such application for dissolution cannot be made within 2 years of the marriage unless there has been willful refusal to consummate or allegation of adultery or rape or sodomy or bestiality or the leave of court is granted (in exceptional cases) as was seen in Akere v Akere where the husband allegedly violent, had inordinate sexual demands and committed adultery with three women.
Moving on; Section 15(2) goes further to state facts upon which the allegation (that the marriage has irretrievably broken down) can be substantiated to wit:
A, Respondent has willfully and persistently refused to consummate (Have sex).
B, Respondent has committed adultery which the petitioner finds intolerable to live with.
C, Respondent’s intolerable behavior.
D, Respondent has deserted the petitioner for up to one year (immediately preceeding the petition).
E, Both parties have lived apart for a continuous period of 2 years and there is no objection to the grant of the decree.
F, That both parties have lived apart for at least 3 years from the presentation of the petition.
G, that the other party has for a period of not less than 1 year refused to comply with a decree or restitution of conjugal rights made under this act.
h. that the other party has been absent for so long a time that it can be presumed that he/she is dead.
For the purpose of this question; I shall analyze Section 15(2)(b) dealing with adultery which the petitioner cannot tolerate.
Adultery is extra-marital intercourse. Where a spouse voluntarily has sexual intercourse with a third party. By sexual intercourse, it should be shown that there was actual penetration. Although presumptions may be raised from the facts and circumstances of the case. For example; in Akinyemi v. akinyemi
The respondent and co-respondent were fond of each other. They were found kissing. It was established that before then, they had spent over 5 hours together to which they cannot account for. The Supreme Court held that it was proper to draw an inference for adultery because they could not explain what they were doing as such it amounted to an opportunity.
The birth of a child by the wife when it can be established that the husband had no access can constitute evidence of adultery.
Where a spouse contacts venereal disease, a presumption of adultery is raised.
Where a spouse has left the matrimonial home to live with another spouse, there is a presumption of adultery. Evoroja v. evoroja.
Bigamy is also an evidence of adultery.
Section 32 of the Matrimonial Causes Act makes it necessary that the co-respondent must be made a party to the proceeding.
To suffice, the petitioner should find it intolerable to live with the respondent. Fajembola v. fajembola
The husband caught the wife committing adultery with the houseboy in the marital bedroom and later he also caught her committing adultery with the driver. It was held that such second occurrence satisfied the second condition of making it intolerable to live with her.
In conclusion, the petition for dissolution may not be granted where it can be shown that the petitioner does not come with clean hands and it is in the interest of justice. For example, where petitioner condoned, connived, colluded or deserted the respondent-Martins v Martins