By Oluwatomi A. Ajayi. Esq.
- Introduction
I am excited to share with you the Insight Series 3 which is aimed at promoting interesting topics under Customary Law like we did previously with Insight Series 1 and Insight Series 2 where we raised topical issues relating to Customary Law and marriage which varies from place to place and governed by the culture of the community in which a party belongs. We also know that marriage under Customary Law in the olden days was mostly polygamous in nature, just as it remains potentially polygamous till today.
2. Keynote
Many Nigerians hold the view that marriage contracted under Customary Law can easily be dissolved even without the involvement of a Customary Court. For example, the presumption is always that any wife who chose to move out of her matrimonial home should have it at the back of her mind that her marriage is over and should therefore not waste her time to go to Court and dissolve the marriage. There are others who have also contended that dissolution of Customary marriages should never arise at all, as long as there are children between the spouses. Of course serious attempts must have been made openly or underneath by parents or family representatives of the spouses to resolve their marital conflict because the notion is that Customary marriage is a union of two families, not two individuals. Therefore, the mediatory role of families is considered vital for the stability of Customary marriages and that is why we see Judges of Customary Courts always wanting to know whether divorcing couples have made efforts to report the erring spouse to any of their family members.
Note that in Customary marriages, couples are not issued certificates of marriage by family members after they have contracted the marriage. However, during divorce litigation in Customary Courts, parties can be asked direct questions relating to the involvement of the spouses’ families in the marriage ceremony and payment of bride price and other presentation of gift items. Do spouses have photographs, video or printed invitation cards covering the solemnization of the marriage that they can tender as exhibits in Court? The Court, as it deems fit, can also request spouses to invite close family members to testify as ‘material witnesses’ because of the need to either clear contradictions or corroborate the testimony given by the parties. One way or the other, their evidence is likely to be helpful to the Court.
3. Grounds for Dissolution
The grounds for dissolution are the basis of the petition leading to the dissolution of a customary marriage. They are usually a broad range of alleged grounds which could just be about anything. In this regard, dissolution of a customary marriage could either be voluntary or involuntary. The death of either spouse is an example of involuntary termination of marriage, while voluntary dissolution could arise by mutual agreement between the parties to separate. By this, we mean a spouse will need to approach a competent Customary Court to initiate a dissolution process on whatever grounds he or she is alleging and where it is apparent that a spouse is no longer interested in continuing with the marriage, then the Court will have to dissolve the marriage. In this modern time, it makes sense to say that a person claiming to be a divorcee under Customary law should be able to show that he or she was granted a divorce by a competent Customary Court.
In customary divorce proceedings, the alleged grounds for dissolution are not strict at all. They are flexible grounds and they could vary from infidelity or sexual promiscuity, desertion of spouse, cruelty to the children, barrenness/infertility, witchcraft, subjecting a spouse to frequent settlement of debts and general addiction to different crimes. Although cruelty is not defined but taking actions like refusal to consummate the marriage, constant nagging, persistent accusation of falsehood, refusal to cook for the family, attempt to murder one’s partner and infliction of grievous harm on family relatives could qualify as instances of cruelty. Similarly, a woman can initiate divorce proceedings against her husband for habitual laziness and drunkenness, insanity, gambling, impotence, economic stress, failure to maintain the children and the home. A wife could also divorce her husband who is a thief or if the man kept bad company. An ill-treated wife could even wake up today and pack her personal belongings out of her husband’s house and move into another man’s house. Of course this would automatically end her subsisting marriage even before the matter gets to Court. Good conduct matters. A husband may divorce his wife on the ground that she is disrespectful and hostile to his parents or family members and even to his co-wives! In a particular Yoruba culture, it is believed that respect for taboos usually strengthens marriage relationships. Therefore it will amount to a taboo for a wife to bring her father’s idol into her husband’s home and any wife who disrespects that culture could be forced to move out of her matrimonial home. Note that matters pertaining to all these alleged grounds are capable of making parties fall out of love and affection for each other.
In this day and age, other grounds though not explicitly stated in the particulars of claim but disclosed by parties during divorce trial include receding of love and loss of emotional compatibility, domestic violence, endless abusive words, concealment of blood genotypes, intellectual disability, phone addiction, vulgar WhatsApp chats, dislike for animals, eccentricity, bad temperament, gluttony and consumption of illicit drugs, indulging in self-harming behaviour, persistent denial of intimacy, religious fanaticism, husband’s inappropriate relationship with female neighbours or his wife’s family members, constant interference by in-laws as well as other intolerable behaviours that could lead to the irretrievable breakdown of the marriage. Note that all these grounds are encapsulated under irreconcilable differences where a party can assert that the marriage has broken down irretrievably.
The Court should however be mindful of divorcing husbands who believe that divorce rituals or end-of-marriage rituals are better conducted in the village than the Court. Of course, this will also depend on the consent of the woman and her family involved as it is not the business of the Court to meddle in that culture after the dissolution of the marriage has taken place in the Court.
4. Speedy Dissolution of Customary Marriages
In line with Section 22(2) of the Lagos State Customary Court Law 2015, Customary Courts are enjoined to promote reconciliation and facilitate the settlement of differences. That is why we see Customary Courts always trying to explore the tool of alternative dispute resolution with the goal of finding mutually beneficial solutions between the parties and if this option fails, the Court can go ahead to dissolve the marriage after parties must have gone through the Court process. However, some people have questioned why Customary marriages are easily dissolved within a very short time. The response to this question is that since Customary Law does not prescribe any length of time a party must be married before initiating a divorce process, it also follows that the termination of Customary marriage can take place at any time after the celebration of the marriage. The late eminent Jurist and Scholar, Prof. Akinola Aguda (1923-2001) equally addressed this question in one of his books. He said the question should rather be directed against Customary Courts and not against the institution of the customary marriage itself.
5. Conclusion
The article has discussed the diverse range of the grounds that parties usually alleged against each other in the Customary Court. Invariably, the grounds could just be due to any of the reasons as stated above but, notwithstanding the insubstantial or absurd nature of the grounds, once the partner informs and testify in Court that he is no longer interested in his marriage, then dissolution of the Customary marriage becomes inevitable.
6. Sources and Recommended Books for Further Reading:
Akin Ibidapo-Obe, A Synthesis of African Law; Akin Oyebode, Ekiti State. The Story of a Determined People; Akintunde Emiola, Emiola’s African Customary Law; E.I. Nwogugu, Family Law in Nigeria; Folarin Shyllon, Yoruba Legal System. Law and Administration of Justice in the Pre-Colonial Era; Justice Akinola Aguda, Select Law Lectures and Papers; Margaret C. Onokah, Family Law.
*.Oluwatomi A. Ajayi, Esq. presides over a Customary Court in Lagos State (May 2024)
