Omoboriowo and Binta met in their last year at the University of Technology, Kogi State, they boarded the same taxi to the University Mini-Campus and the driver joined them together to make change. They enjoyed each other’s company so well that in less than 12 months, they had begun to speak of marriage.
Bori, as fondly called by Binta, is Yoruba from south-west Nigeria, while Binta is part Yoruba, part Hausa from Ilorin, and so the process of marriage proceedings was quite smooth.
The traditional marriage ceremony was done according to Islamic rites, in Ilorin. Thereafter, it was solemnized at the Ikoyi Registry. The ceremonies were so colourful and beautiful. City People Magazine was, of course, present to cover it live.
The Couple soon settled down to the business of marriage proper, Binta headed her Dad’s digital marketing business while Bori was much more interested in building all sorts of “exciting” software.
Two years on, Bori still hadn’t settled down, Binta kept bankrolling his digital adventures while trying not to be agitated. Bori on his part grew more frustrated that his pet projects met with failure after failure. He sought solace in alcoholic drinks and started to beat Binta. She even lost their first baby when he pushed her down the stairs in one episode of beatings.
Out of desperation, Binta went to speak with her Mother in Law Ebudola Renner.
Unfortunately for Binta Renner, Bori was also coming to see his Dad, he overheard his mum and his wife discussing him, and rage consumed him. He instantly turned back and headed home. This, of course, earned her a beating of epic proportions.
At this point, Binta is no longer interested in staying married to Bori and wants to the marriage dissolved. She wants to be free immediately, what can she do? Welcome to a brand-New week and a brand-new series on your darling column, “the Law and You”. As unpleasant as the topic for this week is, the Law makes provisions for it and it is important we learn about it. Our topic this week is on Divorce.
Like I wrote two weeks earlier, Marriage is begun by a process, it is also ended by a process. We had also said it earlier that a marriage is a contract, if the terms are breached, the party aggrieved can seek for redress by asking for a divorce (in legal terms, we refer to it as Dissolution). However, the venue of instituting a divorce petition will depend on the type of marriage contracted i.e. whether Statutory or Customary marriage.
A Customary marriage is one celebrated under traditional laws and customs of the Bride’s paternal family not the groom. Marriage under Sharia (Islamic) law, also referred to a Nikkai is considered a Customary Law marriage for this purpose.Now let us examine divorce under Customary Law marriages (Dissolution is the legal term used to describe divorce.
As we mentioned when we discussed the Law on Marriages, Customary law marriages have no universally accepted marriage rules because we have variations across the different tribes and ethnic groups. However, there are common features of “I no do again” (dissolution) that cuts across the different cultures we have in Nigeria.
So, we have two major ways of dissolving a customary law marriage: (a) Non-judicial divorce. (b) Judicial divorce.
(a) Non-judicial divorce: Two people married under customary law can dissolve their union without seeking any judicial intervention (Going to Court). This Is because divorce under customary law is not as difficult as that of the Statutory Marriage.
In many instances, the marriage is dissolved with the involvement of the two families, representing both the husband and the wife. They (the families) will usually meet and attempt to broker peace. If this is impossible, the Bride’s family has to return the Bride price paid in respect of that marriage.
Where a dispute leads to the non-judicial dissolution of the marriage, the refund bride price is one of important subjects to be settled by the family group that has unsuccessfully been able to reconcile the parties.
It is the Husband’s right to demand for a refund of the bride price he paid, not paying back that bride-price means the marriage is still in existence. However, the Husband may choose not to ask for the refund of the bride-price.
Any renunciation of the right to collect bride price must be done formally and unequivocally before the joint family.
A marriage under Customary law cannot be dissolved by mere wishful thinking or even saying I am no longer interested. Also, either party to a customary marriage cannot (of his or her own accord) bring the marriage to an end by merely living apart from his spouse or even marrying another and having Children.
The marriage must be ended formally by the doing the above.In the celebrated case of Ezeaku v. Okonkwo, the man (He was even a SAN) had married the woman under Customary Law, but due to some differences decided he was no longer interested in the Marriage, and both parties went their separate ways. They lived apart for 17 years, and the man even remarried.
After his death, the first wife demanded for a piece of his properties and her claim though denied at the lower court was agreed to by the Court of Appeal. The Court of Appeal held that despite having lived apart, the man having remarried and even dead, the marriage has still not ended because both parties did not formally end the marriage as prescribed by Law.
Please note under non-judicial divorce the marriage can be dissolved either unilaterally or by mutual consent.
But also take note that there are some localities where only the Husband has the right to unilaterally (to take a decision by yourself without the agreement of the other person) end the marriage. An example of this is the infamous Section 8 of the Biu Native Authority (Declaration of Biu Native Marriage Law and Custom Order 1964 and the Maliki School of Islamic Law which dissolves marriage either by Means of Khul’u- where the wife offers ransom to obtain her release or Talaq-where the husband repudiates the marriage).
The major issue with the non-judicial divorce method is the lack of recordkeeping i.e of time, proceedings and even circumstances in which the divorce was obtained. Now let’s talk about Judicial divorce or dissolution. This is where parties to the marriage choose to approach the Court to dissolve their marriage.
The Court to approach is the Customary Court. Judicial divorce under customary law is becoming extremely popular and relevant. This is because judicial divorce provides recorded evidence of the divorce proceedings. It also provides a forum where the bride price can be returned without too much hostility and infighting. The saying that there is a thin line between love and hate is more relevant in divorce matters because the level of acrimony is usually very very high.
Judicial divorce also creates a forum where parties can be heard without any kind of bias or partiality so that difficult issues as custody of the children of the marriage etc can be heard without much hostility.
Customary courts in Nigeria are vested with jurisdiction (the official power to take legal decisions) to dissolve customary marriages. Their jurisdiction in this respect is unlimited. In Edo State, under the Customary Courts law 1984 of defunct Bendel State (as applicable to Edo State) the Area and District Customary Courts created under that law are vested with unlimited jurisdiction over matrimonial causes and matters under customary law, this clearly involves divorce. This does not refer to marriages contracted under the Marriage Act. In such matters jurisdiction is firmly resident at the High Court. Next week, we will continue with the remaining part of divorce under Customary Law. Kindly send questions and comments via email only to ty.salihu@gmail.com.Thank you for reading….
I remain yours truly, Omotoyosi Bibire Salihu, your Legal Story Teller. Follow me @tysalihu on twitter.
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