“Alimony” and Maintenance During Divorce Under Nigerian Law

According to Blacks Law Dictionary ‘alimony’ is an allowance paid by one spouse to another by order of  a court for the maintenance of the other spouse while they are separated, during divorce proceedings or after they are divorced.

Alimony comes from the Latin word ‘alimonia’ which means sustenance and derives from the common law right of a wife to material support by her husband. In other words it was essentially payable only to a wife. The courts have tried to draw a distinction between maintenance and alimony but this distinction would only apply in jurisdictions where both terms are retained.

The Nigerian Matrimonial Causes Act of 1990 does not mention ‘alimony’ and uses ‘maintenance’ to describe payment of an allowance to a spouse during or after a divorce. While the two words are sometimes used interchangeably by the Nigerian Courts it is recognized that they refer to the same thing. The legal principles governing assessment and determination of alimony also apply to assessment and determination of maintenance and the courts have so held in a number of cases.

Under  Part IV of the MCA  a court can make an order for maintenance for ‘a party to the marriage or of children of the marriage’ suggesting that a maintenance order could potentially be made in favor of the male spouse and a mother could be ordered to pay maintenance for children. It could be considered quite progressive that Nigerian matrimonial law has removed a common law distinction that reinforced women’s lower status.

Nevertheless when reference is made to maintenance orders the assumed beneficiaries are usually the wife and children of the marriage. It would be interesting to see what the courts would decide if a husband petitioned for maintenance from a wife in a divorce proceedings.

While the court has discretion in granting maintenance orders there are nevertheless clear principles for the assessment of maintenance. The court  in  will consider  means and income of the parties,  their financial obligations and responsibilities, their  standard of living, the age of the parties, ability to work and any disability and the contributions of either party to house and family  care.

These principles have been upheld by the Nigerian courts in a number of cases.

Maintenance will not normally be granted if the spouse claiming maintenance has sufficient means and income to maintain him or herself, so the petitioners or applicants earning capacity will be a relevant factor in determination.  In a 1974 case the court held that the purpose of maintenance was to ensure that the wife in this instance was able to live approximately in the position to which she had been accustomed to before her petition for divorce was brought before the court.  Maintenance like alimony is not supposed to be punitive.

Whether maintenance is permanent (that is till the death of either party) or temporary has been decided based on age, education, occupation etc. In one case where the wife was in her 60’s the court granted a generous award for the rest of her life based on the fact that she was already too old to work or be optimally productive.  Maintenance orders have also been granted on a rehabilitatory basis that would support a spouse through a transitional period.  Most maintenance orders terminate on the remarriage of the spouse granted the order since the presumption is the maintenance is no longer required.

I have of course been referring to spousal maintenance; children of a marriage are entitled to maintenance till they are 21 yrs old and the court makes separate orders for each type requested.

In addition to maintenance orders Nigerian courts also have discretionary powers to make orders for settlement of property of the parties to a marriage as the court considers being just and equitable.  The Nigerian Court of Appeal has held that evidence of joint purchase or development was not a prima facie requirement in settlement of property and that the only limitation on the court was to consider what was just and equitable.

Women have applied and been granted settlements of matrimonial property by Nigerian courts and a creative lawyer can make a persuasive argument to the court  and use a growing number of legal precedents to ensure a court uses its discretion wisely to protect the economic rights of men, women and children during divorce.

 

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13 Responses to ““Alimony” and Maintenance During Divorce Under Nigerian Law”

  1. Chike Says:

    If we look at legal history, we find out that the law of domestic relations proceeds on the basis that women are the weaker party in a marriage relationship. It also proceeds on the unspoken basis that by providing sexual service, the woman has discharged her responsibilities in the relationship. Accordingly, the entire law of domestic relationship, while it ostensibly sets out to protect women, in reality entrenches reverse discrimination against men. Maintenance of a male spouse should not be an exception. It should apply on the same common basis as maintenance of a female spouse. To argue otherwise would be to sustain discrimination against men solely on grounds of gender. However, to expect any revolutionary change from the courts would be too ambitious. Male judges like most men, are crippled by Oedipus complex. It would have been gratifying if the female judges compensate by being similarly crippled by Electra complex. Incidentally they are not. So the discrimination against men continues.

  2. BIO Says:

    i am a Nigerian woman who has been married for almost 5yrs but my husband just asked me for divorce because i dont have kids yet and he is not willing to do all that is neccessary to achieve our heart desires. he asked me to leave his house and drop the car which i have been driving for 4yrs now and was told was bought for me but due to the nature of the car purchase through bank loan was bought in his name. we were married at the ikoyi registary, my question is what are my chances of getting atlease the car which will ease my movement around in lagos and my school runs, i dont want money or anything but i feel am being taken for a ride and a fool. please i need HELP

  3. elizabeth Says:

    I have been married to my husband for 2 years now,and i had a boy for him,it was wen i got pregnant for him when dating that we decided to get married.The problem now is that he lied to me about his job and the kind of person he is,i later found out after d marriage dat i dont know him at all,i have been staying with my parent since we got married,my parent has been the one taking care of the child with my schooling,he didnt send any money for our welfare,am tired of him and i dont love him again,he didnt even pay for my bride price i want to quit the marriage what can i do.

  4. apah, okai Says:

    assuming, I woman borned a baby boy for me but seemed not to have respect, walk out from my house, it even result to fight sometimes, while in my house. her family do support her each time i complained. what do I do?

  5. alfredflowers Says:

    You stated that: ” …The Nigerian Court of Appeal has held that evidence of joint purchase or development was not a prima facie requirement in settlement of property and that the only limitation on the court was to consider what was just and equitable.

    Women have applied and been granted settlements of matrimonial property by Nigerian courts….”

    Please do you have any decided case in which the Court of Appeal so held?

  6. Alfred Says:

    Is maintenance applicable only to statutory marriages? What about marriages under customary law?

  7. Princess Worlu Says:

    Our Nigerian law doesn’t really have much to offer women after divorce. Because the effect of the divorce is felt more by the woman especially when she has given birth to children and the marriage lasted more than five years,it’s not always easy for her to move on and remarry quickly like the man because of the children she has had and because she may never be able to bare child again for another man due to her age and it will be difficult for our to integrate into society fully due to the stigma associated with women being divorced in Nigeria. Our laws need immediate review in favour of women. Personally I think it should be a criminal offence for any man who married a woman and she bore him a child not to be given some sort of monetary support for both her and the child.

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