COMPLETE SCHOOL PROJECT TOPICS & MATERIALS :
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CHAPTER ONE
GENERAL INTRODUCTION
- Background of the Study
The family is a fundamental social institution occurring in all societies, although its particular forms differ much from place to place. Stark who happens to be a legal scholar identifies four primary functions of the family to include the following: sexual relationships, economic cooperation among members, reproduction and the educational function – socialization of children. Again, the family is defined as the basic unit of the society. In other words, the family provides the bricks for the building of the society. The society therefore is a combination of different families. At any given time in human history, a family comes into existence each time a marriage is successfully contracted. This claim is corroborated from the biblical account of God’s creation of Adam and Eve whom He accommodated in the ‘Garden of Eden’ and charged with the responsibility of procreating to fill the earth. Again, St. Paul in the Holy Bible says that for the reason of marriage ‘a man will leave his parents and cling unto his wife and they both will become one -husband and wife[1].
Marriage is a covenant relationship between male and female spouses. The covenant nature of marriage provides a strong foundation and secure framework for spouses’ commitment to each other. Covenant defines the marital responsibilities – of husband and wife toward nurturing and protecting their marriage. The couple is expected by their covenant to work hard to reach the level of relationship which protects the marriage from both internal and external negative forces, these were the words of Zhekwo a legal scholar. With the arrival of children, the family keeps expanding. This is true within the African context where marriage is seen basically as a process of procreation. A good marriage guarantees a peaceful and joyful atmosphere in the home, which is most suitable for bringing up healthy and happy children. Research has shown that children who grow up in such environments are more likely to excel in school and in all other aspects of life including their own marital life. Experiences over the years have shown that at times a once blissful marital union turns sour. But before the table turned, the couples believed they were soul-mates as indicated in the way they worked together, walking hand-in-hand, exchanging pleasantries. Each partner then was a true friend, a confidant with good sense of humor ever willing to offer a helping hand to the other.
However, marital instability has become a thing of concern in this contemporary society and this is associated with separation, divorce, and widowhood. Separation and divorce are social experience created by either husband or the wife or both, but widowhood is beyond the control of human being, it is related to death and as such, it is not within the control of humans. Meanwhile, separation may be in two categories: physical Separation i.e. when the husband and the wife reside separately without resolving their marital tie; mental separation i.e. when the couple decides to live together in the same household but without having biological and psychological relations. It is necessary to note that when marriage is dissolved in the court of law, it is called divorce, but when it is dissolved by death is called widowhood. Meanwhile, the term marital instability is used to refer to the process whereby marriages breakdown through separation, desertion or divorce.[2]
According to Lord Westbury in Shaw v Gould[3]
Marriage is the foundation of the civil society and no part of the laws and institutions of a country can be of more vital importance to its subject than those which regulate the manner, and condition of forming, and if necessary, of dissolving the marriage contract.
The growth and development of the contemporary Nigerian society and the present social, political and economic hardships (particularly in an economic recession), being affected on per second dosage on most Nigerians have had negative effects on the life span and duration of marriages particularly customary law marriages. The resulting hardship and challenges present in many marriages today inadvertently push the edges of the closing envelope of survival of most marriages, causing greater number of cases of separations or outright divorce. Consequentially, issues that relate to the dissolution of marriage, and the ancillary reliefs of custody and care of the children (if any) of such broken marriages have once again been pushed to the fore of legal discourse and study. This is especially true of the dissolution regime of marriages contracted under customary law, details of which are not as stable and formal as statutory marriages. Nigeria, being a country of diversity in people and culture, presents a deluge of customs, usages and traditions controlling marriage, divorce and custody relative for each community. Within this diversity though, unity is evident. So that some rules of customary law of marriage can be enacted in the areas under consideration which are common to or similar in most of these communities.
According to Dr.Akinola Aguda,
There is no doubt that the rules governing customary marriage vary from place to place, if one may say so from time to time, like all other rules of customary law, anywhere, but one can hardly subscribe to the suggestion that in spite of that, we cannot find basic requirements of a valid customary marriage. To that extent, we may say that what we have is a customary ‘Law’ of marriage which varies from place to place according to the customs of the people[4]
These various customary laws of marriage detail basic and obligatory rules controlling the making of valid customary marriages, dissolution and custody of children among others. The focus of this paper therefore, is to critically examine the law relating to customary law marriages from the perspective of dissolution, custody of children, maintenance and other issues relating thereto so as to evaluate conclusively the issues and prospects of matrimonial disintegration.
1.2 Statement of Research Problem
Incidence of separated broken marriages in world statistics has continued to increase sporadically. In both statutory and customary marriages, the issue cannot be taken for granted as it is fast constituting into one of the greatest maladies of the family and therefore the society though legal. However, it is beneficial to engage the procedure, grounds and reliefs of the divorce system provided for in customary and statutory laws with a view of determining their comparative conformity with international best practices and their status in human right laws. This, is the objective of this work.
Divorce is a common incidence in both statutory and customary marriages. It presupposes a dissolution and/or termination of a hitherto validly celebrated marriage. However, its operation and applicability to the various legal systems; statutory and customary, differs greatly in details with regards to grounds, procedures and consequential reliefs possible. Hence to determine the grounds and recommend procedures as well as evaluate effects of marriage dissolution on the individuals, family and society at large, it is relevant to first resolve the concepts, grounds and revolving issues around marriage. It is therefore, against this background that this study seeks to evaluate the issues and prospects of matrimonial disintegration in Nigeria.
1.3 Objectives of the Research
The objective of this research work is to find solutions to the problems raised by the statement of the research problems. Specifically, it is also the objective of this study to:
- Identify the legal framework that directly and indirectly governs marriage, marital conflict, dissolution and disintegration.
- Examine the problems, if any, to the matrimonial integration and disintegration.
- To enhance access to information on the negative consequences of matrimonial disintegration on the family, the home and the society.
1.4 The Scope of the Research
In this work, an attempt is made to understudy the grounds, procedures and available consequential reliefs relating to each marriage form as arising from differential legal systems; statutory and customary law systems. This is done with a view to criticizing identifiable deficiencies in the light of human right provisions and international best practices; as well as recommending approaches considered compliant to human dignity, natural justice, equity and good conscience.
1.5 Research Methodology and Sources of Information
This research adopts doctrinal methodology i.e. content analysis. In other words, domestic statutes, case law, maxim, statutory and case reviews, jurisprudential considerations, hermeneutics and other relevant literature or data will be analyzed. Therefore, this study is largely a library- oriented research.
Also, this research uses both primary and secondary sources. The primary sources here include various Case Laws as well as the acts and sections regarding the issues of marriage, and matrimonial disintegration. The secondary source of data for this research includes the soft laws, published and unpublished work of scholars relevant to the research. These include books, journals, articles, seminar papers, newspapers and other periodicals.
[1] Zhekwo , Y.K (2009): Defining the new Testament Logic on Divorce and Remarriage in a Pluralistic context .London, Pickard Publication.
[2] Zhekwo , Y.K (2009): Defining the new Testament Logic on Divorce and Remarriage in a Pluralistic context .London, Pickard Publication supra
[3] (1869) L.R. 3 H.L 82
[4] Aguda A; Selected Law Lectures and papers (Associated publishers, Nigeria Ltd, Ibadan) 67