Posts Tagged ‘divorce’

Child Custody in Nigeria FAQ: Who Owns The Child? II

February 9, 2017

‘Ownership’ of children is a feature of many customary laws in Nigeria.

Customary laws vary from one tribal group to the other. In some Igbo-Nigerian communities payment of the bride price determines ‘ownership’ of children. In ‘An Anatomy of Female Power’ Chinweizu has previously argued that the payment of bride price in Nigeria does not entitle the payer to the woman but rather to the fruit of her womb and I agree with him.

Among some Igbo-Nigerian groups and in Umuaka where I come from and grew up in particular under tribal laws where a marriage is not formalised and a bride price is not paid any child a woman bears ‘belongs’ to her father’s house and enjoys full inheritance rights. Likewise, if a woman left or divorced her husband she had to repay him the bride price her paid or any children she had thereafter ‘belonged’ to him, no matter who was the biological father. However, these tribal laws have been held to be repugnant to natural justice, equity and good conscience and are not usually enforceable by the customary courts anymore. Likewise, tribal laws that deny mothers access or custody without a consideration of natural justice, equity and good conscience are repugnant. However, it takes a good knowledgable lawyer to make that argument before the court.

In Yoruba-Nigeria the practice was that a child could claim a right to inheritance so long as the father had acknowledged him during while the father was alive. Sharia law, which is classed as a customary law in the Federal republic of Nigeria, apparently privileges mothers in custody issues whether they were married or not.  Customary courts just like statutory courts have a lot of discretion and it all depends on the arguments they are presented to them.

Lagos State is the only state in Nigeria that has created a family court procedure to deal with disputes relating to guardianship, custody and adoption that is not related to matrimonial causes in its Child Rights Law 2007. So if you are in Lagos and are unmarried and have a custody matter that is the law to refer to.

Nevertheless there is still a lot of confusion regarding children that are born to parents that were never married under statutory or customary law. There is also an increase of children born to parents that are not married under statutory and customary law. There seems to be a presumption that once a father is named on a birth certificate as such it secures his ‘rights’ to the child. I figure the courts will be busy untangling those complications for a few decades to come.

I’ve heard from a lot of people that the Social Welfare Office’s, which are increasingly called upon to decide questions of custody and maintenance in cases where the parents were never married have been ruling that once a child is 7 years old the father can take custody. This is wrong and dangerous and needs to stop. The law remains clear that the best interest of the child is paramount in deciding custody and neither parent  is entitled to automatic custodial rights. Both must show that they can meet the best interest of the child and not only that the other parent cannot.

In a decided case the father when asked what arrangements he had made for the children whose custody he was seeking said they would stay with his ageing mother in the village as opposed to staying with heir mother on the university campus where she lived and worked. The judge despite his conservative leanings ruled the children live with their mother even though he could not bring himself to grant her custody.

Perhaps the confusion lies in the meaning given to the word ‘custody.’ Custody is not ownership. We’ll consider ‘custody’ in my next post. I’m already over my 500 word limit. Or guideline.

Chao

mdv102ts

 

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Nigerian Case Law on Child Custody

June 11, 2016

I’ve received a lot of enquiries on custody of children in Nigeria and decided to write an update with some decisions made by the courts.

In Nwosu v. Nwosu (2012) 8 NWLR Pt 1301 – the court of appeal held –

On the right of parents over custody of children of a marriage

The Court held both parties have equal rights in matters of custody of the children. In other words a mother has equal rights with the father over the children. In the instant case the appellant had equal legal interest in the children of the marriage and a right to protect that legal interest.

On Equal Rights of parents over custody of the children of the marriage

In regard to custody or upbringing of a minor a mother shall have the same rights and authority as the law allows the father and the rights and authority of the mother and the father shall be equal and exercisable by either with out the other.

One of the questions that the court of appeal considered was whether or not the appellant (mother) had a right to take the children away from the matrimonial home before a formal order of custody made by a court of competent jurisdiction to determine the issue of custody.

The respondent (father) had asked an Owerri High Court to declare his wife did not have the right to remove the children from their school and relocate then elsewhere without a prior order of the court. The court of first instance sought to compel the mother to return the children till a determination of custody.

The mother appealed the judgement and her appeal was upheld. The court cited the previous Supreme Court ruling in Williams v. Williams (1987) that held both parents have the same right to custody of children pending a custody hearing.

“The law would be an ass indeed if a parent who has inherent legal interest in the children can’t do something to protect he children before the law can take its course” said Ogunwumiju JCA in his lead judgement in Nwosu v. Nwosu.

The court upheld a mother’s right to remove herself and her children from the matrimonial home in the event of  breakdown of the marriage, threat or fear violence and maintaining status quo ante bellum pending matrimonial proceedings.

Counsel for the respondent (father) went on to argue the children of the marriage were of ‘Igbo extraction’ and their father ‘rich and willing to have them around’. The court held that “the reasons given by the learned trial judge in arriving at the conclusion that the appellant (mother) had no legal right to take the children from the matrimonial home were unconstitutional”

“I have no hesitation in arriving at the conclusion that these declarations of the rights of the parents in relation to these children were based on a wrong premise which is that the rights of a very rich father are superior to the rights of the less affluent mother who is from a different tribe. There is discrimination on the basis of tribe, sex and financial means.” – Ogunwumiju JCA

In Tabansi v. Tabansi (2009) 12 NWLR Pt 1155 the lead judgement of the Court of Appeal delivered by Alagao JCA held that “Except the conduct of the wife is morally reprehensible it is better in an estranged marriage for the child of the marriage, more so if that child is a girl of tender age to be left in the care and custody of the wife.”

FAQ: My husband is Threatening to Sue Me Under S.389 of the Penal Code

November 24, 2015

Question: After reading this my husband started to threaten to sue me and to send my former  lover to jail. Can he do this?

Answer: The Penal Code is only applicable in northern Nigeria, incident would have had to happen in Northern Nigeria.
Judgement delivered in Upper Area Court,

Area Courts exist in the Northern parts of Nigeria including the Federal Capital Territory, Abuja.
(i) The Upper Area Court
(ii) The Area Court I
(iii) The Area Court II

The jurisdiction of the Area Court under that Law includes the following:
(a) All questions of Islamic Personal Law
(b) Matrimonial Causes and matters between persons married under customary law
(c) Suit relating to custody of children under customary law
(d) Civil actions involving debt demand and damages
(e) Matters relating to succession to property and the administration of estate under customary law
(f) Matters concerning ownership, possession or occupation of land

If you are married under statutory law, jurisdiction is with the high court and under the Matrimonial Causes Act.

 

Alu Nwanyi Na Mma

May 24, 2015

Her name was Alumma. She was the first daughter of Agamekwe. She led a hard life. Her mother died when she was 15. She had three brothers, the youngest was just 7 when their mother died. It fell to her to cook and look after them. Agamekwe had four wives. Each wife took care of her hut and her children.

It was a heavy burden for a young girl. She was petite, just 5 foot 2, and slim of hip. She coped the best she could. She went to the farm, she went to the market, she came back and cooked for her brothers. When her older brother turned 22 he got married but the expectation that his wife would cook for them were never fulfilled.

Alumma got married at 25, a late age for a woman to marry in those days. Her slim hips made it difficult for her to birth a child. Her only baby died at birth but not before tearing her up so bad that for the rest of her life she leaked piss through her vagina. She never got pregnant again and her hut always smelled of stale piss.

Her husband beat her regularly after that. Her younger brother – her champion even when the teachers beat her in school came to her rescue. One day as dawn broke over the horizon, he arrived their house and trashed her husband so thoroughly she feared he would kill him. Then he took her back to their fathers house and promised to take care of her for the rest of her life.

She grew old there, subsisting on a small free hold they gave her to farm and the kindness of her siblings.  Hers was the only mud and thatch hut in the homestead. It was a single room ten feet by ten feet. Her doorway was so small you had to bend over double to pass through it. Her only window was just big enough to put your head through.

Her bed took up half the room, a clay pot for water and her cooking utensils filled the other half. She cooked in a lean-to by the side of her hut and slept with her chickens clucking under her bed. She was the poorest member of the family but she never ate without calling all the small children in the compound and giving them a morsel of her food.

When she was still strong enough to go to the market she sold roasted peanuts. Every few days she would gather sand in a large clay bowl and set it over a roaring fire. When the sand was hot she would add the shelled peanuts and stir them over the fire till they were done. Children would gather round her while she stirred and she would give each one a few hot peanuts.

She was a devout Christian and never went to the hospital or took medication, no matter how sick she was. She had the faith of a Daniel or an Ester. She would pray, drink her holy water, and anoint herself with her holy oil. If she got really sick she would go and spend a few days at her ‘mission’  where her church members would join her in prayer till she was better.

She died sick, poor and broken by a life of poverty and hardship just a few days after her brother – the one that rescued her.

Dealing With A Divorce in Nigeria

December 27, 2012

You  finally did it you took the plunge you files a divorce petition against that no good cheating night crawling broke ass violent abusive spouse of yours. So why are you feeling blue? Why are you crying at the slightest ting like a woman a hormonal imbalance? Why are you avoiding people and places? Why you hiding out at home in your negligee or wrapper or sweats or whatever you wear watching cheesy soap operas? Why are you moping around like someone died? Shouldn’t you be out celebrating with the girls or the kids or the family or someone?

Of course not, you are and you should be grieving. When you walked down the aisle, whether literally or figuratively you intended it to be a lifetime partnership, I’m sure you didn’t plan for it to be for a while. Right?  Okay some of you might have. Doesn’t matter. Even if was just a pretend marriage you had to have developed some attachment to your spouse. Even if it was just sexual or a codependency or you’re a socio-path. Okay?

Your relationship, your codependency, your marriage just ended. It is like a death. In my former practice at the women’s abuse shelter we counselled all women that went through our program to allow themselves at least a year to grieve and heal before even considering a new relationship if they were considering one at all.  Sound advice still. You will go through the five stages of grief and it will impair your judgement  some folks more than others.  Remember that. Don’t make too many life changing decisions right now if you can avoid it.

Find out about what’s happening to you right now and how to help yourself. Follow this link to some on line resources on grief management. If you understand what’s happening to you it will be easier to get through the process safely and without bitterness, rancour or other life sapping negative emotions that your soon to be ex-spouse would be only too glad to know you have to distract you from your purpose which should be to live the best life that you possibly can.

I’m sure the sociocultural environment of Nigeria won’t help but there isn’t much I can do about that  from here.  Surround yourself with people that support you right now.  When you are stronger you can deal with the rest.  For many of you this will be the hardest part, breaking free and through the endemic social inhibitions and institutions that will challenge your right and your choice every step  of the way to kingdom come.

Grief is a physiological process, you cant get away from it, learn to use it positively to grow.

Be well

 

What You Need To Do Before Getting A Divorce in Nigeria

December 24, 2012

Once you’ve made up your mind to get a divorce here are the next ten steps you should take

1. Plan where you r going to live. If you want custody of the children the court will demand to know how and where you with live with them. In some cases the courts have accepted a woman’s parents residence but almost never if you are living with anyone else.

2. Start saving money, you will need all the money you can get whether you are expecting to live on your own or with your children.  And divorce proceedings can get expensive.

3. Get a job if you don’t have one. To get custody the court will demand you show proof of work.

4. Calculate /track your living expenses for 3 to 6 months with receipts etc.

5. If you cannot work or get a job you must be able to demand maintenance from your spouse especially if your spouse prevented you working.  Gather evidence to prove this.

6. Make copies of all important documentation like marriage certificates, children’s birth certificates. Any properties you own together that you believe you have a substantial claim or interest in

7. Consider whether you were married in church and which one, in a registry or a traditional ceremony or a combination of the 3.  If you were married in the Catholic Church or the Anglican Church your marriage comes under statutory law even if you did not go to a registry.  Your lawyer will  file in the High court. If you married in any of the other churches you should ask them. I’ll get information on all churches that qualify asap and post to the blog. If its a traditional ceremony only then customary and tribal law applies.  You’re petition will be filed in a customary court. Look for a lawyer whose expertise is there

8. Make a short-list of lawyers to see in your locality. Get names by word of mouth, on-line or through legal articles. Go and interview each of them. Make sure they understand the particular law as it relates to you and are sympathetic with you. If their first response is to advice or insist on reconciliation move on.  Do not go with your evidence for the first meeting. Assess the lawyer before making a commitment.

9. If you’re satisfied that the lawyer will act in your best interest to secure a divorce/ separation for you and get custody for you then go and give him photocopies of all your evidence for assessment.  Create your own file to keep at home. This when you should pay your retainer fee and sign an agreement with your lawyer.

10. If you want to claim maintenance or even division of property you will need evidence of your spouses income and assets.  This will include salary slips, bank statements, property deeds etc. Make sure you get copies of all these things if they are available.

10. Talk to your family and your friends and your pastor before deciding on a divorce. Only go see a lawyer after you’ve decided that you want a divorce or separation. I’ve met lawyers that believe their personal ‘calling’ is to reconcile divorcing couples. I do not.

Don’t go to a lawyer unless your decision is made. Its not the lawyer’s job to help you decide one way or the other really or to advise you whether or not to get a divorce. The decision is yours,  a lawyers job is to make it legally possible for you to achieve your aim with the full protection of the law.  So help your lawyer help you.  Take these steps first.

Of course there are times when the decision to leave is abrupt and you cannot be prepared. If your life is in danger you must put your safety first.

 

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Grounds for Divorce in Nigeria – Adultery and Intolerability

November 12, 2012

Its not enough to establish that a party to a marriage has committed adultery ( and contrary to what I have read elsewhere recently it DOES NOT only apply to the wife or female party). Remember evidence of adultery can be circumstantial, the court will consider preponderance of evidence and not proof beyond reasonable doubt.  The court will look for opportunity and familiarity.

There are a number of circumstances were adultery is generally presumed

1. where the parties are living together

2. Bigamy is proof of adultery

3. Confessions of adultery are also proof

4. The  fathers name registered on a child’s birth certificate

5. Frequent visits to brothels

6. Sexually transmitted diseases that the other spouse does not also have

The petitioner in a divorce case also needs to prove that he or she now finds it intolerable to live with the respondent. This intolerability need not arise as a result of the adultery but there must be evidence of intolerability. If for instance a wife no longer desires to have sex with her husband and her husband resorts to raping her that could be evidence of intolerability.  On the other hand if a wife does have sex with her husband after he commits adultery does not condone him.

Evidence of intolerability is completely subjective, its all about what the petitioner feels and not what a reasonable man or woman may feel.

Its not enough to prove adultery, to sustain this ground for a divorce there must be both and there must be evidence of both.

If you have questions don’t hesitate to get in touch

cheers

Grounds for Divorce in Nigeria – Cruelty & Domestic Violence

November 9, 2012

Cruelty is an old common law ground for divorce which does not exist under the Matrimonial Causes Act but can be used to establish that the respondent has behaved in ways that the petitioner can no longer be reasonably expected to live with him or her as provided in section 15(2).

Cruelty is the intentional an malicious infliction of physical and mental harm and suffering or a reasonable fear of further harm. It also includes the continuous infliction of minor acts of ill treatment that are likely to cause the victim to break down emotionally or mentally. However, temper and nagging are not enough to establish cruelty.

Strong evidence of cruelty includes police reports, medical records and eye witness testimony are desirable but not indispensable. The court is required to consider the entire evidence and decide whether it gives rise to a finding of cruelty. Generally conduct that endangers life, limb or health will amount to cruelty.

This will include persistent, pervasive and excessive violence or threat of violence, deliberately infecting a spouse with a sexually transmitted disease, constant displays of rage, use and abuse of juju/voodoo or religious doctrine neglect of a spouses physical needs for food, shelter and clothing and verbal and emotional abuse.

It should be noted that under the act the requirement is to prove that the petitioner/victim can no longer be reasonably expected to live with the respondent and the burden of proof is significantly lighter than it was to prove cruelty under common law.

The Nigerian case law on section 15(2) is remarkably well developed. Make sure your lawyer is knowledgeable about them and can cite the appropriate cases.

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Grounds for Divorce in Nigeria – Cruelty & Domestic Violence

October 25, 2012

Cruelty is an old common law ground for divorce which does not exist under the Matrimonial Causes Act but can be used to establish that the respondent has behaved in ways that the petitioner can no longer be reasonably expected to live with him or her as provided in section 15(2).

Cruelty is the intentional an malicious infliction of physical and mental harm and suffering or a reasonable fear of further harm. It also includes the continuous infliction of minor acts of ill treatment that are likely to cause the victim to break down emotionally or mentally. However, temper and nagging are not enough to establish cruelty.

Strong evidence of cruelty includes police reports, medical records and eye witness testimony are desirable but not indispensable. The court is required to consider the entire evidence and decide whether it gives rise to a finding of cruelty. Generally conduct that endangers life, limb or health will amount to cruelty.

This will include persistent, pervasive and excessive violence or threat of violence, deliberately infecting a spouse with a sexually transmitted disease, constant displays of rage, use and abuse of juju/voodoo or religious doctrine neglect of a spouses physical needs for food, shelter and clothing and verbal and emotional abuse.

It should be noted that under the act the requirement is to prove that the petitioner/victim can no longer be reasonably expected to live with the respondent and the burden of proof is significantly lighter than it was to prove cruelty under common law.

The Nigerian case law on section 15(2) is remarkably well developed. Make sure your lawyer is knowledgeable about them and can cite the appropriate cases.

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Grounds for Divorce in Nigeria – Adultery and Intolerability

July 16, 2012

Its not enough to establish that a party to a marriage has committed adultery ( and contrary to what I have read elsewhere recently it DOES NOT only apply to the wife or female party). Remember evidence of adultery can be circumstantial, the court will consider preponderance of evidence and not proof beyond reasonable doubt.  The court will look for opportunity and familiarity.

There are a number of circumstances were adultery is generally presumed

1. where the parties are living together

2. Bigamy is proof of adultery

3. Confessions of adultery are also proof

4. The  fathers name registered on a child’s birth certificate

5. Frequent visits to brothels

6. Sexually transmitted diseases that the other spouse does not also have

The petitioner in a divorce case also needs to prove that he or she now finds it intolerable to live with the respondent. This intolerability need not arise as a result of the adultery but there must be evidence of intolerability. If for instance a wife no longer desires to have sex with her husband and her husband resorts to raping her that could be evidence of intolerability.  On the other hand if a wife does have sex with her husband after he commits adultery does not condone him.

Evidence of intolerability is completely subjective, its all about what the petitioner feels and not what a reasonable man or woman may feel.

Its not enough to prove adultery, to sustain this ground for a divorce there must be both and there must be evidence of both.

If you have questions don’t hesitate to get in touch

cheers