By Ehidiamen Destiny Odianosen, Esq
A large number of the populace have this erroneous belief that once a man contracts court marriage, he has subjected himself to the shackles and manacles of servantship to his wife and the woman is waiting to take 50% of the man’s property in the event of divorce. It is on the backbone of that misleading conception, that this paper seeks to have a panoramic view and to establish the true picture of court marriage so that some dangerous misconceptions we hold about it could purged.
For avoidance of doubt, the term “Court Marriage” is a misnomer and a wrongful tag. The legally correct and proper name is “Statutory Marriage”. In a nutshell, statutory marriage simply means marriage that is conducted under the statutes and enabling laws as distinct from customary marriage that is tailored according to customs and tradition of a particular tribe.
It is not surprising that most females and fathers have become fanatical cheerleaders of court marriage, by erroneously and whimsically branding court marriage as an insurance company that will pay indemnity in the event of divorce; thereby ascribing no legal value to our age long customary marriage. Such a concept is legally misleading. Both customary and statutory marriages have the same efficacy, legal effect and judicial imprimatur. A party can apply for grant of maintenance (money) and division of property in the event of divorce and dissolution of a customary marriage. It is only the court that dissolves customary marriage Ezeaku V Okonkwo (2012) All FWLR [pt 654] pg 129 . A party who contracts customary marriage need not to do or contract satutory marriage.
Emphatically, church marriage is baseless, meaningless and holds no weight in legal sense. It is only done to assuage the feelings of being a society. Obiekwe V Obiekwe [1963] 7 ENLR 196.
But it must be stated here pronto that celebration of marriage in a licensed place of worship after parties have presented the registrar’s certificate of court marriage to the officiating minister, is not baseless in law. Licensed place of worship is one of the places which is optional to celebrate marriage as a condition precedent to fulfilling requirements of court marriage (this is applicable where a person has gone to court to contract court marriage at first). Motoh V Motoh [2O1O]LPELR 8643 C. A
One act which has beclouded the practice of modern marriage is the practice of considering halls and fields as legal places of celebration of marriage. Such a conduct can best be termed as a flimsy facade practice, display of opulence and announcement of nouveau riche status.
One striking feature of court marriage is the complete rejectamenta of any modicum of polygamy. A man is precluded from contracting customary or statutory marriage with two different women. He is also precluded from contracting any other marriage with another woman after he had initially contracted a valid marriage whether statutory or customary. However, he can conduct both statutory and customary marriages with the same woman. Sections 35 and 46 of the Marriage Act and Section 33(1) of the Matrimonial Causes Act). For example, if Mr. Okojie, at first, marries Mrs. Simbi under the customary marriage and subsequently goes ahead to marry Mrs Adago under court marriage, the court marriage to Adago is void, legal, offensive and attracts 5 years imprisonment. The marriage the law will recognize is the customary marriage to Mrs Simbi. Mr Okoije can go ahead to contract both kinds of marriages with Mrs Simbi. He can also decide to contract court marriage only and abandon contracting customary marriage
REASONS WHY MEN SHOULD CONSIDER COURT MARRIAGE OVER CUSTOMARY MARRIAGE.
With due respect and without attempting to devalue customary marriage, court marriage has more legal flavour and colouration over customary marriage, on evidential value and its susceptibility to administration of estates law.
Evidential value: It simply means something to present if the need arises, to prove a cause. Just like the fictional “Titanic” movie character Jack, who dripped and froze to death in the ocean just to allow for space on the metal escarpment for Rose to be safe, this depicts the extent a man can go to do anything for his wife.
A tragic life story that I witnessed was where a man who purportedly contracted a customary marriage with his spouse, used his life savings to open a shopping mall for the wife in the hope of a better future for his family. Before his wife could bear a child, she was lost to the unruly hands of death. The crux of the matter was that the man lost the shopping mall and his investment to the wife’s family who claimed that the man had not completed all the steps of traditional marriage. Having failed to do that, it means that there was no marriage at all. The man lost the legal battle through the confusing labyrinth and laborious calling of witnesses to prove the existence of marriage as the bulk of witnesses were from the woman side. This huge financial loss would have been avoided if the man had a marriage certificate to prove the existence of marriage in order to claim the property because under the Administration of Estates Law (Inheritance law), once a person contracts court marriage and one of the spouses dies intestate, the estate of the deceased will dovetail and will be legally bequeathed to the living spouse. Obusez V Obusez (2007) ALL FWLR, [pt 374], pg 227.
Another perfuming flavour of court marriage over customary marriage is on the premise that only consent of contracting parties is required. This will help shove off some ethnical principles held by some parents, that children are not supposed to marry from certain tribes or states thereby making the intending couples seek parental approval first, before proceeding with the marriage. This is especially so because such parental consent is legally required for customary marriages. This in a way, prevents lovebirds who are deeply in love from marrying, and by extension, capriciously depriving these lovers of eternal joys of marriage. Intended couples faced with this problem could simply resort to court marriage which requires no parental consent. Agbo V Udo (1947) 18 NLR 152.
Finally, certificate of court marriage is a prima facie evidence of the existence of marriage. The marriage certificate comes handy to those who need family visa to travel abroad.
LEGAL WAYS THE COURT DIVIDES MATRIMONIAL PROPERTY BETWEEN SPOUSES AND GRANTS MAINTENANCE AFTER DIVORCE
The love which newly married couples once emphatically professed to last forever may become frosty, acrimonious, sour and broken down irretrievably beyond repairs by marriage counselors. Such marriage comes to its epilogue via the initiation of divorce proceedings in court. The jigsaw puzzle question before the court becomes, how to make division of the matrimonial property according to efforts and financial contributions made by each spouse in the cause of the marriage; such concept in law is know as the grant of maintenance (money)and alimony. Section 70 of Matrimonial causes Act.
One point I want to emphatically make known is that there is dissolution of marriage by the court, settlement of matrimonial property, grant of maintenance, division of matrimonial property and child custody both in customary and statutory marriages. In some countries, the mere existence of strong cohabitation may warrant for a person to be granted maintenance. In Nigeria, a spouse can seek to be granted maintenance and share of his/her own contribution while the marriage is still subsisting and even without initiating divorce proceedings. Kpilah v Ngwu (2018) LPELR -45395(CA).
The recent divorce case between Jeff Bezos and Mackenzie has further enveloped most husbands into trepidation that they are on the receiving end or would most likely lose property in event of divorce, but the legal truth is that men who anchored their belief on that misconception surely miss the legal point, just like Yakubu Ayegbeni infamously missed that goal opportunity at the world cup, for the following reasons:
a) The sole belief that a man’s wife is entitled to the grant of maintenance and has a share of the property is erroneous and not legally correct as she cannot be entitled to the grant of maintenance and share of the property on mere fact that she is a wife. Okala v Okala (1973) 3 E.C.S.L.R.
b) There is no presumption of equal division of property in divorce proceedings. The fact that a woman will divorce her husband will not automatically entitle her to half of her husband’s property. Kpilah v Ngwu (2018) LPELR -45395(CA).
c) The mere fact that the husband is rich, parades crème da la crème cars and material chattels, is not a guarantee that the woman will be granted maintenance. Will v Will 2 FLR 136. One would ask, why has the popular former Nigeria minister, who has divorced four times, not gone broke? There are some judicial, legal formula and principles the court puts into consideration before granting maintenance (This will be discussed later).
Unfortunately many people are unaware that the law gives husbands opportunity to be granted maintenance and alimony from the woman in divorce proceedings. Section 70 of the Matrimonial Causes Act dispassionately states that a man can ask his wife to pay him alimony. Coker V Coker (suit no.wd/19/61 of 7/1/63[ unreport lagos state high court, Orr V Orr 440 US 268(1979).
There are plethora and conspicuous examples where women paid their ex-husbands alimony. Some America celebrities’ cases are glaring examples of such e. g, Micheal Jackson’s sister, Janet Jackson, paid a humongous 8 million Dollars in 2000 to Rene Elizonde her ex – husband and dancer. It was even proven that before the divorce, her husband had a higher financial standing than Janet Jackson. The popular pop star Jennifer Lopez paid alimony of 10 million Dollars to her ex – husband Judd Criss.
Grant of maintenance is not reserved only for a particular gender, it is for both spouses, but due to the hubristic and megalomaniacal attitude displayed in our African societies, men are ashamed to ask for maintenance from their divorcer or divorcee wife.
LEGAL FORMULA, MODES AND FACTORS THE COURT WILL CONSIDER TO GRANT MAINTENANCE, DIVISION OF PROPERTY AND DIVORCE SETTLEMENT.
Contributions of the spouses, financial capacity, age, conduct of the parties which necessitated the divorce, that is, which spouse is at fault or who caused the breakup, who is to be in custody of the children, and other relevant factors are usually considered. Odusote V Odusote (2012) 3 NWLR [pt 1288], Kpilah V Ngwu (supra).
CONTRIBUTION: This means the financial contributions of the spouses in the acquirement of property and or the joint ownership of property. The court must be able to discern each person’s contribution. A woman or spouse who has not by any means, made any contribution to the family’s financial progress may not be granted maintenance. The woman has to prove her financial contribution for her to be granted alimony. Essien V Essien (2009) 9 NWLR [pt 1146].
QUERY: Where a man makes his wife the manager of his company or business or tells her not to work but just to stay at home for the management of domestic affairs and taking care of the children, could it be said that the woman has not made any financial contributions?
The law has made it apt and clear in the illuminating decision of the court in Kafi V Kafi (1986) 3 NWLR 175 pt 27, that a woman or spouse who helps in managing the family’s business can be granted divorce settlement. Also a woman who stays at home and manages the affairs of the family will also be granted maintenance and divorce settlement. Erhahon V Erhahon (1997) 6 NWLR [PT 510] 667.
Note that is not self induced laziness and indolence will not avail much in court. There must be an agreement between the man and the woman that the woman should stay at home.
MISCONDUCT OF A SPOUSE: Most spouses or women use court marriage as an avenue to exhibit impulsive conduct, rash behavior, insolence and express high egocentric belief never to apologized for egregious faux pas. Some ladies ignorantly hold on to the idea that they are free to do anything they like in a marriage on the ground that they are protected by the court and in event of a divorce, divorce settlement will be granted to them. The court have held that a woman whose misconduct leads to irreconcilable differences or commits adultery, which warranted the divorce, can not be granted divorce settlement. Ajayi – Ajayi v Ajayi – Ajagbe [1978]CCHCJ 193.
Taking a look at the factors mentioned above, if Jeff Bezzoes’ case were to be addressed in the Nigerian lex fori, the woman’s contribution to the Amazon company will have entitle her to even more than that divorce settlement.
AVOIDING UNCERTAINTIES OF GRANT OF DIVORCE SETTLEMENT OR MAINTENANCE
One thing about the grant of divorce settlement and maintenance is that it is granted based on court’s discretion, which is exercised judiciously and judicially and more importantly, having regard to equity and fairness. There is no mathematical ascertainment of property and contribution. There is the unavoidable tendency that a divorce settlement may favour one party over the other, this is the more reason one needs a lawyer. The party who may likely lose in the event of grant of divorce settlement needs his lawyer to draft prenuptial agreement. A person who wants to contract any form marriage should informed his lawyer to draft this prenuptial agreement. The agreement can made before the spouses contract court marriage or while the marriage subsists. Prenuptial agreement simply states how property is to be shared in the event of divorce.
CONCLUSION
One truth that has been established in this article is that court marriage is not a goldmine where gold diggers come to harvest as they wish. This article has also established that court marriage is not an insurance company that will pay a woman indemnity. Any woman reading this article who is not contributing any thing to the marriage should in her interest, have a rethink so as not leave her husband’s house with one skirt and blouse, when divorce sets in. You must work and contribute to the financial progress of the family. Similarly, men who always prevent their wives from engaging in any means of livelihood, should also have a rethink so as not to suffer the weight of the law. Above all, always get lawyer to draft prenuptial agreement before marriage. Do not be blinded by love that may fade out.
Ehidiamen O.Destiny Esq
Uromi Abuja based lawyer
O7064200330
[email protected]
