FAULT AND NO-FAULT PRINCIPLE OF DIVORCE IN NIGERIA
Introduction
In this paper, we shall be examining the
import of fault and the no-fault principle of divorce in the Nigerian law of
divorce, especially with regard to section 15 of the Matrimonial Causes Act,
1970. We shall look at the history of divorce law in Nigeria, the no-fault
principle in relation to section 15(1) of Nigerian Matrimonial Causes Act, its
merits and demerits and also look at how the no-fault principle is applied in
other jurisdictions. However, before delving into these, let us first of all
define the terms divorce, fault divorce and no-fault divorce.
According to Black’s Law Dictionary, divorce is the
legal dissolution of a marriage by a competent court and when used without
qualification, the term divorce imports a dissolution of the marriage relation
between husband and wife, a complete severance of the tie by which they were
united[1].
Divorce is thus the legal termination of a marriage and the obligations created
by marriage, other than by a decree of nullity or presumption of death[2].
Fault divorce is a divorce granted to one spouse on
the basis of some proven wrongful act by the other spouse and traditionally,
the common grounds for a fault divorce were adultery, abandonment,
imprisonment, and physical or mental cruelty while the defenses to alleged fault
in a petition for divorce were condonation, connivance, collusion,
recrimination and insanity[3].
On the other hand, no-fault divorce is a divorce in which the parties are not
required to prove fault or grounds beyond a showing of the irretrievable breakdown
of the marriage or irreconcilable differences[4].
A
Brief History of Divorce Law in Nigeria
Nigeria as a country inherited the bulk of her legal
system from England such that our Nigerian divorce law can never be complete
without reference to the English divorce law[5].
Hence, the Nigerian law on divorce prior to 1970 was
based on the matrimonial offence theory, which had the English matrimonial
Causes Act of 1965 as its source. The
reason for this was that the law on matrimonial causes in force in England from
time to time was made applicable to Nigeria. In England, however, the
matrimonial offence theory originated from the old Ecclesiastical Courts, which
had the exclusive competence with regard to dissolution of marriages and the
granting of the decree of divorce ‘a
mensa et thoro’. This decree of divorce has the effect of relieving the
parties of the duty to cohabit, but none of them was allowed to remarry[6].
When eventually secular divorce was introduced by the Matrimonial Causes Act of
1857, the newly created courts were conferred with the jurisdiction to grant
decrees of dissolution of marriage, nullity and separation[7].
The Act in addition also made it possible for the parties to obtain divorce
based on the commission of adultery, such that the offence theory continued to
be upheld. In other words, under the matrimonial offence theory, a marriage may
only be dissolved when a spouse has committed a matrimonial offence like
adultery, cruelty or desertion.
It was in 1920 that the New Zealand legislature began
to experiment with the notion of breakdown of marriage. This experiment gave
rise to a movement away from the matrimonial offence principle, which
eventually culminated in the enactment of Matrimonial
Causes Act, 1959 by Australia and the Matrimonial
Proceedings Act, 1963 by New Zealand. In 1964, the Archbishop of Canterbury
appointed a group known as “Putting Asunder” to review the law of England
concerning divorce. This group which included eminent English judges and legal
practitioners found the existing offence principle highly unsatisfactory for
many reasons[8],
and in its report of 1966 recommended among other things a wholesale change of
the English law of divorce by abandoning the fault theory and adopting the
breakdown of marriage as the basis of divorce law[9].
The court was however to assume an inquisitorial role in every case in order to
satisfy itself that the marriage has broken down irretrievably.
This report was then referred to the Law Commission
which eventually came out with a report entitled, The Reform of the Grounds for Divorce: The Field of Choice. In this
report, the commission rejected the proposal that divorce should be based on
breakdown with inquest on the grounds that this would unduly lengthen trials,
increase the expenditure. The Commission went further and concluded that:
the objects of a good divorce law should be to
buttress, rather than undermine the stability of marriage, and when unavoidably
a marriage has broken down irretrievably, the empty legal shell of the marriage
should not only be buried, but buried “with decency and dignity and in a way
which will encourage harmonious relationships between the parties and their
children in the future[10].
It can therefore be safely said that the reports of
the review group called “Putting Asunder” and the Law Commission formed the
catalyst for the English Reform Act of 1969 that represented a compromise
solution. Hence, all the old grounds of divorce were abolished and replaced by
one ground that the marriage had irretrievably broken down, which may however
be established only by proof of one or more of five facts set out in the Act[11].
Nigeria benefited from this English Divorce Reform Act
of 1969 in the sense that the Matrimonial Causes Act, 1970 which was enacted by
the Military Government to replace the English rules applicable in Nigeria by
then, fundamentally changed the pre-existing law of divorce in Nigeria by
introducing the irretrievable breakdown element as a ground for divorce, in
place of the former matrimonial offence concept[12].
It was observed however that apart from this most significant change effected
by the Act through the introduction of the irretrievable breakdown principle,
it at the same time retained elements of the matrimonial offence principle[13].
This position of the retention of both principles has been criticized by
Nwogugu for its unlikelyhood to satisfy the protagonists of either of the two
principles.
The
No-fault Principle in the light of Section 15 (1) of MCA
The provision of section 15 (1) of the Matrimonial
Causes Act, 1970 is considered to be one of the main objectives of the
Act which was to make irretrievable breakdown the sole ground for divorce in
Nigeria[14].
However, on the enactment of this Act, there was an initial confusion as to
whether the Act provides for ‘one ground’ of divorce or ‘grounds’ of divorce.
The Act in section 15 (1) provides as follows:
A petition under this Act by a party to a marriage for
a decree of dissolution of the marriage may be presented to the court by either
party to the marriage upon the ground that the marriage has broken down
irretrievably[15].
The confusion stems from the fact that while section
15 (1) of the Act speaks of ‘the ground” rather than ‘grounds’, the marginal
note to this section 15 of the decree , which came into effect on 17th
day of March, 1970 spoke of ‘grounds’ for dissolution of marriage implicitly
suggesting that there are more than one ground.
Based on this confusion, the question that readily came
to mind was whether the Nigerian Matrimonial Causes Act imported no-fault
principle or was still operating a fault principle based on divorce system.
Opinions were varied and so a lot of controversies were generated on the issue.
Some legal experts maintained the view that the Act introduced a no-fault
oriented divorce system for it shifted the emphasis from fault to the actual
state of the marriage.
Uzodike held the opinion that though some distinct
changes have been achieved by the Act, the law is basically still the same, as
the Act is merely a case of putting new wine in an old skin[16].
Kasunmu on the other hand, in very strong terms condemned the continued
retention of some grounds of divorce based on fault. According to him, the
repudiation of the matrimonial offence principle by the Act is deceptive,
because, in order to prove breakdown, some grounds of divorce which a
petitioner can rely on, is still fault-oriented[17].
Some authors like S.A. Adesanya maintains that the
marginal note to section 15 (1) , which talks of “grounds of divorce” is part
of that section since it exists with the authority of the decree, unlike in
England where such a note is not normally inserted with the authority of
Parliament; and that even if it is not regarded as part of the section, it is
still helpful in resolving ambiguities or doubts[18].
Other learned authors like S.C. Ifemeje basing her argument on the decision of
Justice Nnaemeka Agu in the case of Ezirim
v. Ezirim[19] disagreed with
him on the ground that the marginal note cannot supercede the express
provisions of the Act[20].
On this issue and the import of the marginal note
contained in section 15 (1) of the Act, I would humbly submit that section 3
(2) of the Interpretation Act
provides thus: “A heading or marginal note to an enactment does not form part
of the enactment and is intended for convenience reference only”. The Supreme
Court in NTC Ltd v. Agunanne[21]
explained the rationale behind the general rule that marginal notes cannot be
used for the construction of an enactment:
The notes often found printed at the side of sections to
an Act, which purports to summarize the effect of the sections, have sometimes
been used as an aid to construction. But the weight of authorities is to the
effect that they are not part of the statute and so should not be considered.
The rationale for the rule is that, they are inserted not by parliament nor
under the authority of parliament, but by some other persons or draftsmen. The
side notes are mere catchwords and the amendment to alter a side note could not
be proposed in the parliament. This general rule represents the true position
with regard to a bill that passes through a legislation.
The Nigerian Courts have however always interpreted
section 15 of the Matrimonial Causes Act
1970 as establishing irretrievable breakdown of marriage as the sole ground
of divorce. According to Justice Nnaemeka Agu,
It is necessary to bear in mind the fact that although
the Act (Matrimonial Causes Act)
created only one ground of divorce, to wit; that the marriage has irretrievably
broken down (see section 15 (1) of the Act); yet that the facts which may lead
to the marriage breaking down irretrievably are categorized under sub-sections
(a) to (h) of section 15 (2). Only those facts can suffice to found a petition
for divorce[22].
This opinion of Justice Nnaemeka Agu is equally shared
by other jurists. For instance, in the case of Williams v. Williams[23],
Dosunmu J., the learned Justice of the Court of Appeal said:
It is true that the new Matrimonial Causes Decree
introduces some radical changes in the law of Divorce, but still, a party must
come within the four walls (of the old law) before he will succeed. It is not
sufficient for him or her to say, my marriage has irretrievably broken down,
and I can no longer live with my partner”.
It was equally clearly stated in the cases of Otunga v. Otunga[24]
and Oki v. Oki[25]
that the particular section of s.15(2) on which the petitioner wants to rely
upon in his petition must be pleaded in order to assist the court in
determining, if the marriage in question had broken down irretrievably. In Ekrebe v. Ekrebe[26],
Mohammed JCA, held that, for a divorce petition to succeed, the petitioner
must plead one of the facts contained in section (15) (29 (a)-(h) of the MCA;
and that if the petitioner fails to prove any of the facts stated in the law,
the petition must be dismissed, even if the dissolution is desired by both
parties.
Be that as it may, these other cases point to the
significant and fundamental changes made by the 1970 MCA with regard to
Nigerian divorced law. In Tokun v. Tokun[27],
the judge remarked that divorce today, is not based principally on fault on
the part of one or both of the parties but is principally based on
irretrievable breakdown of the marriage, even without any fault on the part of
either party. Savage J., in Shokunbi v.
Shokunbi[28] held:
It is the actual state of the marriage that the court
has to inquire into, as to know, whether or not, it is still viable, rather
than concern itself with the question of guilt or innocence or either party
which point is irrelevant.
This is in line with the observation made by Nsofor
JCA in Erhahon v. Erhahon[29]
that the Nigerian MCA 1970 facilitates the dissolution of a marriage, which
exists in a shell or by name on the ground that the marriage, has broken down
irretrievably.
These judicial pronouncements point to the fact that
the judge lays emphasis on the actual state of the marriage in deciding whether
to grant the decree or not, and appears to view the grounds for divorce as the
symptoms of the breakdown of the marriage.
However, a good look at section 15 (2) of Matrimonial
Causes Act shows that some of the facts (or grounds) are based on the fault
principle while others are based on no-fault principle. The fact that the
Respondent has willfully and persistently refused to consummate marriage (15)
(2) (a); that since the marriage the respondent has committed adultery and the
petitioner finds it intolerable to live with the respondent (15)(2)(b); that
since the marriage, the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the respondent
((15)(2)(c); that the respondent deserted the petitioner for a continuous
period of at least one year immediately preceding the presentation of the
petition (15)(2)(d); that the other party to the marriage has, for a period of
not less than one year, failed to comply with a decree of restitution of
conjugal rights made under this Act (15(2)(g), are all based on the fault
principle of divorce.
On the other hand, the fact that the parties to the
marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of petition and the respondent does not
object to a decree being granted (15)(2)(e); that the parties to the marriage
have lived apart for a continuous period of at least three years immediately
preceding the presentation of the petition (15)(2)(f); that the other party to
the marriage has been absent from the petitioner for such time and in such
circumstances as to provide reasonable grounds for presuming that he or she is
dead (15)(2)(h), are based on the breakdown theory, or the no-fault principle of
divorce.
It becomes therefore evident that from a close
examination of Section 15 of the Matrimonial Causes Act 1970, what the Act
introduced in effect is neither exclusively the breakdown theory/no-fault
principle of divorce nor a fault principle. To a certain extent, what we have
rather, is a mélange, a mixed doctrine of both the fault and the no-fault
principle. This is why I wholly agree with the learned authors like S.C. Ifemeje
and E.I. Nwogugu, that the Nigerian divorce law is based partly on the offence
principle and partly on the breakdown theory of divorce[30].
General
Assessment of No-fault Principle of Divorce
The fault principle that was in operation in the early
60’s was severely attacked and criticized on many grounds such as its vile
hostilities and hypocrisies. One of the major attacks was the wide spread
practice of collusion between couples who mutually wish to terminate their marriage.
It was said that the spouses even went to the extent of hiring private
detectives, and staging adulterous encounters for the cameras in order to get
enough evidence for the court. In seriously contested cases, some couples went
as far as also employing the services of private detectives to gather
incriminating evidence against the other party. A treatise on American family
law complaining about the situation stated that,
In divorce litigation, it is well known that the
parties often seek to evade the statutory limitations and thus there is great
danger of perjury, collusion, and fraud… In many cases no defense is
interposed, and often when the case is contested, the contest is not waged with
vigor or good faith[31].
Another negative aspect of the fault divorce was the
influence it had on the children who were very often caught at the cross fire,
as they were at times recruited as informants and witnesses in the legal battle
to establish fault[32].
As a result of the problems associated with the fault
principle of divorce, the advocates of no-fault principle promised a better
outcome based on two great benefits to be derived from it. The first benefit
was that no-fault principle would reduce the apparent conflict between the
couples seeking for divorce, as they would no longer be forced to assign legal
blame for the end of the marriage. The second benefit was that the no-fault
principle would enhance respect for the law, as the couples seeking for divorce
would no longer have to commit perjury, or lodge false accusations of adultery
to obtain it[33].
The introduction of the no-fault principle of divorce
did not fulfil the hopes as anticipated. It came to be branded all sorts of
names by critics such as “throw away marriage”, “unilateral divorce on demand”,
“divorce made easy” etc. The critics of the No-fault principle maintained that
no fault divorce laws have transformed the holy covenant of marriage into a
meaningless piece of paper known as “marriage licence”, and that in the United
States alone, the enactment of the no-fault divorce brought about an increase
in the divorce rate by 279 percent from 1970 to 1992. The statistics in Canada
estimates that roughly 40 percent of marriages that took place in 2008 will
have ended in divorce by 2035[34].
The critics equally state that the no-fault principle
of divorce serves as a guarantee for any person who wants to leave any
marriage, at any time, for any reason or no reason at all and be rewarded for
it. In other words, the no-fault divorce empowers the spouse who wishes to
leave, and leaves the spouses who is being left helpless, overwhelmed and weak.
It becomes thus evident that the serious criticisms
leveled against the no-fault principle of divorce are that it demotes marriage
from being a binding relation into something best described as co-habitation
with insurance benefits; it lowered the status of marriage while increasing the
financial status of divorce lawyers, and it liberalized divorce thereby
increasing the rate of divorce. There is no doubt that these negative
consequences are far bigger problems than the acrimony and hostility between
spouses that the no-fault principle set out to ameliorate.
Comparative
Analysis of No-fault Principle of Divorce and increase of Divorce Rate in other
Jurisdictions
Canada
Canada is counted among the many countries that
accepted and adopted the no-fault principle of divorce. According to researches
conducted in Canada which was diligently reported by S.C. Ifemeje[35],
of all marriages conducted in Canada, 50% of them ended in divorce, with even
more recorded in the year 2000.
The Canadians themselves maintained that the increase
in their divorce rate is attributable to their divorce laws, which prior to
1968 had adultery as the only ground for divorce. It was in 1968 that the
Divorce Act was amended to include other reasons such as physical and mental
cruelty, and separation for at least 3 years. In 1986, the divorce law was further
amended to allow and permit divorce after one year of separation, with no
requirement to prove fault by either spouse, and this no doubt led to an
astronomical increase in divorce rate in Canada[36].
In Canada therefore, the legal experts have attributed
the blame for the escalating rate of divorce to the no-fault principle of
divorce and equally condemned it in clear terms for the feminists who inspired
it and argued for it as a means to decrease animosity, trauma and expense in
divorce were bluntly wrong and mistaken. The no-fault principle only benefited
the lawyers and accountants, and made it easy for a spouse to walk away from a
marriage instead of trying to work through the stress inevitable in every
marriage; and it unfortunately also emphasized personal happiness in marriage
as a priority over responsibility to spouse and children[37].
Another aspect and outcome of no-fault principle in
Canada is increased poverty. According to P.S. Taylor, it is ironic that making
marriage easier to exit led to a well-documented increase in poverty rates for
women, as single mothers are identified as one of five critical risk groups for
poverty today[38].
Hence it is said that family breakdown, which increased with the advent of
no-fault divorce, is irrefutably responsible for increased poverty rates in
Canada.[39]
England
The Reform Act of 1969 marked a new stage of divorce
litigation in England and also led to a complete upheaval of divorce laws by
making the irretrievable breakdown of marriage to be the sole ground for
divorce. While some people[40]
attributed the increase in divorce rate to this change in legislation in
England, others maintain that the reasons for divorce and marital breakdown lie
deep in culture and personalities which society produces rather than in
substantial provisions of an Act of Parliament[41].
All said and done, it stands to reason that a readier
availability of divorce in itself creates a habit of mind that is detrimental
to marriage as an institution and to a great extent weakens the security and
stability of marriage. This is why Lord Stowel in the case of Evans v. Evans[42]
argued that easier divorce increases disposition for divorce, which is seen
not as the last resort, but as the only way out, when things start going wrong
in marriage. According to him,
The general happiness of the married life is secured
by its indissolubility. When people understand that they must live together
except for a very few reasons known to law, they learn to soften, by mutual
accommodation, that yoke which they know they cannot shake off, they become
good husbands and wives.
However, it must be stated that it is the opinion of
people that holds sway on this issue of whether the liberalization of divorce through
the no-fault principle is responsible for increased rate of marital breakdown in
England or whether the increase is dependent more on sociological developments.
The views are clearly divergent and as such, Dr. Ifemeje believed that “an
analysis of research evidence so far in England, shows that it has not been
established that the introduction of no-fault divorce principle was responsible
for the increase in divorce rate”[43]
Australia
In Australia up to the end of the 1960’s, marriage was
a legal bond of indefinite scope that could only be ended by serious misconduct
by a spouse which subverted the central aspirations of marriage for love and
mutual support, fidelity, reasonable behavior, and the having of children.
However, the Australian Matrimonial Causes Act, 1959
which came into force in February 1961provided that divorce could be granted on
one or more of 14 grounds, which included adultery, desertion, separation for
five years in certain circumstances, cruelty, drunkenness, and failure to
comply with a restitution of conjugal rights decree. In order to succeed on any
of these grounds, a spouse had to prove marital fault.
Hence, although there were significant changes to
Australian family law in 1959 and 1961, the most radical was effected by the
Family Law Act 1975 when “no- fault” divorce on the basis of “irretrievable
breakdown” of a marriage on the evidence of separation for one year was made
available[44].
There is no doubt that the change to no-fault divorce
had some consequences and implications in Australia. According to Maley, the
move from fault based to no-fault divorce had three consequences:
It no longer gave public or legal recognition to the
reality of serious misconduct in marriage and the injury or distress that it
may cause to spouse and children, thus tending to diminish marriage as a kind
of contractual bond with obligations to spouse and children. It abolished the
possibility of compensating a victim of a destroyed marriage and its
expectations with a favourable property settlement and/or maintenance/alimony
provisions arrived at by private bargaining or a court order. It diminished the
notion of marriage as a serious and permanent bond, thus foreboding its easy
and more frequent dissolution[45].
As a result of these consequences, Parkman remarks that
it is even easier to fall into and fall out of marriage:
No-fault divorce changed the assumptions that people
make before marriage. Knowing that it is easier to dissolve a marriage may lead
people to enter marriages that they would not have considered when the
dissolution was more difficult, resulting in an additional number of fragile
marriages and eventually an increase in the divorce rate[46].
While there are people like Baley who attribute the
high rate of divorce to the no-fault principle describing it as a direct attack
on the institution of marriage, some others in Australia hold that it is by far
better for children to live in happy, sole-parent households than in a
fractured, two-parent households.
I would rather agree with the conclusion reached by
the Australian Institute of Family Studies on “Diversity and Change in
Australian Families” when with particular reference to “Divorce and
Separation”, in Australia, it said that the no-fault principle introduced gave
rise to a barrage of divorces in Australia:
In 2001, 55,300 divorces were granted. This means that
there were 110,600 newly divorced adults in 2001. The number of divorces in
2001 was the highest since the peak year of 1976 when the introduction of the
Family Law Act was followed by 63, 230 divorces. The divorce figure in 2001
represents a general increase in the number of divorces each year[47].
United
States of America
It was Governor Edmund G. Brown, Sr., who while
explaining his support for no-fault divorce reforms in 1966 said that the time
has come for all in California to acknowledge the fact that the social and
legal procedures for dealing with divorce were no longer adequate. Three years
after this remark on the need to reform California’s fault-based divorce law, Governor
Ronald Reagan signed the Family Law Act into law, making California the first
no-fault divorce State in the United States of America. Commenting on this act,
Elizabeth Schoenfeld said: “On September 5, 1969, with a stroke of the pen,
California governor Ronald Reagan wiped out the moral basis for marriage in
America”[48].
With this legal revolution in California, other States
followed suit, such that within a decade nearly every State had enacted some
form of no-fault divorce. A 1985 review of family law in the United States
found that 18 States had enacted “pure” no- fault divorce laws, of which 14
made marital breakdown the only ground for divorce. Three other States made
“incompatibility” the only ground for divorce, while 22 States added the
no-fault standard of “marital breakdown” to existing fault-based grounds for
divorce[49].
A summary[50]
of what took place with regard to changes in Divorce Law can be presented as
follows:
|
Traditional Divorce
|
No-Fault Divorce
|
|
Restrictive Law:
To protect marriage
|
Permissive law:
To facilitate divorce
|
|
Specific Grounds
Adultery, cruelty, etc
|
No Grounds
Marital breakdown
|
|
Moral Framework
Guilt vs. Innocence
|
Administrative framework
Neither responsible
|
|
Fault
One party cause divorce
|
No-fault
Cause of Divorce irrelevant
|
|
Consent of Innocent spouse Needed
Innocent spouse has power to prevent or delay the
divorce
|
No consent needed
Unilateral divorce
No consent or agreement required
|
|
Gender- based responsibilities
Husband responsible for alimony
Wife responsible for custody
Husband responsible for child support
|
Gender- neutral responsibilities
Both responsible for self-support
Both eligible for custody
Both responsible for child support
|
|
Financial Awards Linked to Fault
Alimony for “innocent” spouse
Great share of property to “innocent” spouse
|
Financial awards Based on Equality and Need
Alimony based on need
Property divided equally
|
|
Adversarial
One party guilty, one innocent
Financial gain in proving fault
|
Non-adversarial
No guilty or innocent party
No financial gain from charges
Amicable resolution encouraged
|
The no-fault divorce has been criticized by many for
making divorce too easy and for increasing the rate of divorce, with the effect
that nearly 50 percent of all marriages will end in divorce. There are
nevertheless others who disagree. According to pollster Lou Harris, “The idea
that half of American marriages are doomed is one of the most specious pieces
of statistical nonsense ever perpetuated in modern times. It all began when the
Cesnsus Bureau noted during one year, there were 2.4 million marriages and 1.2
million divorces. Someone did the math without calculating the 54 million
marriages already in existence, and presto, a ridiculous but quotable
statistics was born”[51].
It however remains an undisputed fact that the general perception is that the
high rate of divorce has some connection with the no-fault principle of
divorce. This has led to many states proposing legislations to impose
substantial obstacles to divorce, so as to strengthen the institution of
marriage.
The Family Research Council even questions what
message no-fault divorce laws provide about the sanctity and permanence of
marriage: “What are we communicating when it is easier to divorce your wife of
25 years than it is to let go that employee you hired two weeks ago? We have
undergone a significant shift from a culture of marriage to a culture of
divorce”[52].
With regard to America, the views are therefore divergent
as to whether the no-fault divorce has been solely responsible for the
increased divorce rate in America. While some hold that no-fault divorce is the
sole reason for the increase, as it reduces the protections for spouses wanting
to continue marriages, some others equally hold that other sociological and
environmental reasons are responsible. Both views on the other hand share a
common ground in rejecting the re-introduction of the fault principle as a
remedy to the increase in divorce rate in America.
Evaluation
of the No-fault Principle of Divorce in Nigeria
Given that Nigeria today has a mixed up principle of
fault and no-fault principle, it becomes pertinent to look at the reasons for
divorce in Nigeria. According to Dr. S.C. Ifemeje, the factors are many and
include “socio-cultural factors, child related factors, personality factors,
personality factors, role oriented factors, sex-related factors, economic or
financial factors”[53].
As many foreign jurisdictions that adopted the
no-fault principle are clamoring for a change in legislation, what is best for
Nigeria: the mixed divorce principle, the fault principle or another principle
entirely different from the no-fault principle? After reviewing and considering
the divorce rates in four customary courts in Anambra State, the statutory
divorce rates in Abuja, Rivers, Enugu, Abia and Anambra High Courts from 2001 –
2006, Dr. S.C. Ifemeje agreeing with the view of David Canter that marriage
should be a mutual and voluntary agreement whose purpose should be the
happiness of the married couple came to the conclusion that “the inclusion of
no-fault principle into our divorce law is the best thing that has ever
happened to our divorce system[54]”.
I would rather submit that while the happiness of the
married couple is important in marriage, marriage as an institution which
requires stability for the welfare of the children cannot be made to be
dependent alone on the mood swings of the couple, such that if one party
becomes unhappy and expresses a desire to terminate the partnership, the
marriage ought to be terminated with minimum bitterness.
For the fact that some foreign jurisdictions that
applied the no-fault principle saw it as highly inadequate[55],
the call for the total removal of the fault element in Nigerian divorce law will
only lead to an increase in divorce rate which presently has not risen
geometrically, like in other jurisdictions that did away completely with the
fault element. Even though researches tried to debunk the view that the
adoption of no-fault principle has been solely responsible for the increase in
divorce, “it is discovered as a matter of fact, that there is actually a huge
increase in divorce rate in most countries that adopted the no-fault principle
of divorce[56]”.
Hence, instead of arguing for the removal of the fault
based divorce grounds, as contained in section 15 (2), (a), (b), (c), (d) and
(g) and the absolute and discretionary bars to divorce, as advocated by S.C.
Ifemeje and Justice Aguda[57],
it is submitted that the mixed doctrine currently in force serves as a better check
to opening the doors of divorce too wide in Nigeria.
Recommendation
and Conclusion
There is need to strengthen the institution of
marriage rather than weaken its foundation through legislations that make for
an “easy divorce” thereby destroying the family which is the fabric of every
stable society. This can be done through the establishment of Centers of Family
Guidance and the introduction of marriage mentoring programs for young married
couples to learn from those who have weathered storms ahead of them, for it is
an illusion to believe that divorce brings greater happiness.
[1] B.A. Garner(ed.), Black’s
Law Dictionary, 8th Edition, West Publishing Co., p.515
[2] E.A. Martin (ed.), Dictionary
of Law, 3rd Edition, Oxford University Press, Oxford, 1994, pp.
131-132
[3] B.A. Garner (ed.), Op.cit.,
p.515
[4] Ibid., p.516
[5] S.C. Ifemeje, Contemporary
Issues in Nigerian Family Law, Enugu, 2008, p.39
[6] S.M. Cretney, Principles
of Family Law, Sweet and Maxwell, London, 1984, p.99
[7] Section 6, English
Matrimonial Causes Act, 1857
[8] For details of the reasons given cf. S.A. Adesanya, The Laws of Matrimonial Causes, Ibandan
University Press, Ibadan, 1973, pp.36-37;
S.C. Ifemeje, Op.Cit., pp.44-45. Summarily, these reasons are: 1) In many cases,
the commission of matrimonial offence by one spouse is a symptom, and not the
cause of the breakdown of the marriage. 2) The consequence of matrimonial
offence was to declare one party ‘innocent’ and the other ‘guilty’, and this
was bound to work injustice in many cases since in most divorce cases, both
spouses are at fault in varying degrees. 3) The matrimonial offence principle
meant that the ‘innocent’ spouse could in theory, keep in existence a marriage
which is already an empty shell, if he decided for some reason not to petition.
4) The matrimonial offence principle which often resulted in one party being
branded as guilty often causes bitterness and distress between the parties and
their children alike. 5) The offence principle often resulted in the
fabrication of evidence, where the spouses were determined to obtain divorce by
all means.
[9] E.I. Nwogugu, Family Law in Nigeria, Ibadan: 1990, p.155.
[10] Cmnd 3123, paras, 15,16 and 17 Cited by S.A.
Adesanya, Op.cit., p.37; see also
S.C. Ifemeje, Op.cit., pp.45-46.
[11] S.C. Ifemeje, Op.cit.,
p.46.
[12] M.C. Onokah, Family
Law, Spectrum Books Ltd, Ibadan, 2003, pp.187-188
[13] E. I. Nwogugu, Op.cit,
p. 156.
[14] M.C. Onokah, Op.cit., p.188
[15] Matrimonial Causes Act & Matrimonial Causes Rules,
CAP M7, Laws of the Federation of Nigeria 2004.
[16] E.N.U. Uzodike, “A Decade of Matrimonial Causes Act
1970” in Current Law Review, 1983, p.57.
[17] A.B. Kasunmu, “Matrimonial Causes Decree 1970: A
Critical Analysis” in Nigerian Journal of Contemporary Law, vol.2,
no.2 (1971), p.49
[18] S.A. Adesanya, Op.cit., p.38
[19] FCA/C/56/78 Unreported Feb 6, 1981 Court of
Appeal, Lagos.
[20] S.C. Ifemeje, Op.cit., p.47; see also A.G.
v. Prince Ernest (1957) A.C. 436.
[21] NTC Ltd v.
Agunanne (1995) 5 NWLR (pt. 397) 541 at 573.
[22] Ezirim v. Ezirim
Suit No. FCA/L/56/78 (Unreported) February 6, 1981, Court of Appeal, Lagos Division.
[23] (Unreported) LD/12/169 of 1st June 1970, cited
by S.C. Ifemeje, Op.cit., p.48.
[24] (Unreported) WD/119/70 of 19th April 1971
[25] (Unreported) WD/80/70 of 30th July 1971
[26] Ekrebe v. Ekrebe, (1999) 3NWLR (pt.596) 514 at 517.
[27] Unreported Suit No. 1/127/80 cited by S.C.
Ifemeje, Op.cit., p.72.
[28] CCHCJ/7/76, p.1913 cited by S.C. Ifemeje, Op,cit., p.72.
[29]
Erhahon v. Erhahon, (1997) 6 NWLR
(pt.570) 687
[30] E.I. Nwogugu, Op.cit., p. 156; S.C. Ifemeje, Op.cit.,
p.49.
[31] C. Vernier, Section 80, “Proctors” of Divorce and
Separation in American Family Laws: A
Comparative Study of Family Law of the Forty-eight American States, Vol.2,
Stanford University Press, Stanford, 1932, p.93
[32] S.C. Ifemeje, Op.cit., pp.88-89.
[33] M. Gallagher, “End No-Fault Divorce?”, www.firstthings.com/article/2008/09/001-end-no-fault-divorce-4,
accesses on 15/12/12.
[34] A. Ambert, Divorce:
Facts, Causes and Consequences, Vanier Institute of the Family, Ottawa 2009,
p.4. Retrieved from
http:/vifamily.ca/sites/default/files/divorce-facts-causes-cobsequences.pdf;
accessed 15/12/12
[35] See S.C. Ifemeje, Op.cit., pp.96-97. The details of divorce rate in Canada covering
1998 -2000 showed that Canada experienced not less than 69,0898 couples
divorcing in 1998 alone.
[36] John Carvel, “7 Years High Divorce Rate“; http://www.statcan.ca/Daily/English, accessed 17/12/12.
[37] Ibid.
[38] P.S. Taylor, “Family Poverty in Canada:
Raising incomes and strengthening families”, Ottawa, 2007, p.3. Retrieved from
http/www.imfcanada.org.art_files/Family%20Poverty%20in%20Canada%20-%20Final%20-%20Hi%20Res.pdf;
accessed 18/12/12
[39] A. Mrozek “Finding Fault with no-fault divorce“,
February 2012, http:/www.canadanobservermag.ca/; accessed 18/12/12.
[40] See “Divorce Patterns“, www.swan.ac.uk/
[41] R. Philips, Putting Asunder: A History of Divorce in Western Society, Cambridge
University Press, London, 1983, p.4
[42] Evans v. Evans 1 Hag, Con, 35,36-37, cited by S.C. Ifemeje, Op.cit, p.101.
[43]. S.C. Ifemeje, Op.cit., p.102.
[44] Barry Maley, The Future of Marriage, p.11, Retrieved from www.cis.org.au/images/stories/policy-monographs/pm-58.pdf;
accessed 19/12/12.
[45] Ibid.,
[46] Allen M. Parkman, No-fault Divorce: What went wrong?, West View Press, Colorado,
1992, p.78; See also Aisa Burns, Breaking
Up: Separation and Divorce in Australia, Melbourne, 1980, pp.21-123.
[47] Australian Institute of Family Studies, “Diversity
and Change in Australian Families” (Divorce and Separation), www.aifs.gov.au./institute/pubs/diversity/15divorce.pdf.;
accessed on 19/12/12.
[48] E. Schoenfeld, “Drumbeats for Divorce Reform”,
in Policy Review: The Journal of American
Citizenship (May-June 1996) 77
[49] ASSEMBLY COMMITTEE ON JUDICIARY, “Divorce
Reform in California: From Fault to No-fault… and Back Again?“ in www.library.ca.gov/crb/98/04/currentstate.pdf,
Accessed on 21/12/12
[50] Lenore Weizman, The Divorce Revolution, The Free Press,
New York, 1985, p.40
[51] Ibid.,
[52] FAMILY RESEARCH COUNCIL, FAQ Sheet, What is FRC’s Stand on Divorce Reform, cited in Current
State Legislation of Interest, www.library.ca.gov/crb/98/04/currentstate.pdf,
Accessed on 21/12/12
[53] S.C. Ifmeje, Op.cit., p. 109: The social factors include interference of
in-laws, unequal educational attachments, differences in values, and attitude
of couples. ;Personal factors include incompatibility, over-expression of
authority, bullying, lack of communication and cooperation; Sex-related factors
include unsatisfactory sex relations, sterility of either couple or involvement
in extra-marital affairs by either of the couples; Poverty and childlessness may also lead to
divorce in Nigeria.
[54] Ibid., p. 120.
[55] See A. Mrozek, “Finding fault with no-fault divorce” ,
February 2012, http:/www.canadanobservermag.ca/; Accessed 18/12/12.
[56] S.C. Ifemeje, Op.cit.,
p. 227
[57] See A. Aguda, “An Examination of the
Matrimonial Causes Decree 1970“ in Aguda
Selected Lectures and Papers, Ibadan Associated Publishers, Ibadan, 1971,
p.125.
