Modern Day Reality: Statutory Marriage No Longer the Saving Grace

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By Qudus Alalafia

Before I proceed to the fulcrum of my discussion, let me hurriedly say that I am aware that this discussion is quite controversial in nature for being a dissenting voice to the majority of public opinion that sees Statutory Marriage (which in the public context is known as “court marriage”) as the safest and best for a proposed marriage. Also, my discussion hereunder isn’t in any way at war with the well-known advantages of Statutory Marriage which include but are not limited to:

  1. Exclusive partnership in Marriage to the exclusion of every other person including children of the marriage. That is, not even the children of the marriage can come in between parties to a statutory marriage, not to talk of family members and relations. See the authority of Hyde v Hyde 1 P. & D. 130;
  1. parties are protected under the law in respect of the joint commission of a crime. They are rather seen as one party particularly as it affects conspiracy to commit a crime. See section 33 of the Criminal Code Act;
  1. proscription of extramarital affairs during the pendency of a statutory marriage as a crime called bigamy. See section 370 of the Criminal Code Act;
  1. a party to a statutory marriage is first in line under succession (I mean, being the first the law prioritises during inheritance). See Administration of Estate Laws of respect States; and
  1. inability to compel a party to a statutory marriage to give evidence. See section 182 (2, 3 & 4) of the Evidence Act.

Having said all these, it is prayed that the anger which ought to visit this piece is quenched or almost quenched. As earlier stated, this piece isn’t against contracting marriage under the law, its essence is to call people’s attention to the evolving new order which is almost becoming natural due to societal factors and stereotypes. Meanwhile, the targeted audience of this piece is women and non-lawyers whom experience has shown to be the greatest victims of statutory marriage due to a lack of proper consideration of available options available to them when contracting marriage.

To the main discussion, and for the purpose of those that aren’t familiar with the position of law on statutory marriage particularly as it affects divorce, it is a marriage that when contracted can only be dissolved by the court to the exclusion of every other person. Hence, the popular Nollywood scene of “come and sign divorce paper” doesn’t exist in reality. This explanation is provided because the fulcrum of this piece relates to the stringent/difficult procedure a party who seeks to get out of a statutory marriage will face for years before getting off the hook. And to address this issue, the following shall be discussed in no particular order:

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Dear Maiden, the whole truth which stares us right in the eye is that not all issues affecting marriage are what one can foresee during courtship or iron out, and even if, the love and affection one has for the other partner may not allow one to think straight to take up the option of ending such a relationship particularly when the relationship has spanned years.

Part of these issues ranges from; getting married to a destructive partner, a partner that is inherently lazy to stand up financially again after a situation occurred in the course of the marriage, or a partner that practices homosexuality, to a partner who is sexually attracted to his child, or even when the husband suffers low sperms count which affects birth, to mention but a few among the uncouth situation that bewilders marriages at this dispensation.

As earlier stated, it is observed that while no one prays to encounter any of these situations, it is advised that everyone should put into consideration both positive and negative factors affecting marriage in order to prepare for the day of escape. How does a woman who is a victim of domestic violence escape from a marriage that can only be dissolved by a court of record after taking evidence and considering other factors before death beckons when the other partner is destructive? Or how does one get off the hook quickly when the lives of one’s children are in danger due to the stringent position of law on the dissolution of marriage? May the gentle soul of departed victims of a destructive marriage rest in peace. Amen.

It is quite didactic to say that the data report of why maidens contract marriage under the Law is to prevent their partners from cheating. However, on the contrary, experience as a litigation lawyer has shown that contracting statutory marriage doesn’t stop some men from cheating, at all. What it only does, is to prevent the man from bringing another woman into his matrimonial home as a second wife. However, notwithstanding the contract of a statutory marriage, it is stated that the majority of the larger volume of divorce cases in our courts is predicated upon alleged infidelity of a party (that is adultery), thereby making the cliché “he won’t cheat if we contract Marriage under the law” quite untenable.

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It is further stated that where a husband cheats to the extent of impregnating another woman, gone are the days when a child is referred to as illegitimate. The parent-child right extends equally to every child and parent irrespective of the marital status of the parents. So, for all intents and purposes, a husband to whom a party has contracted marriage remains the father of the child in the case he doesn’t deny paternity. So yes, the child has the right of inheritance same as the wife and children of a statutory marriage.

In the case of a woman of a statutory marriage who becomes the breadwinner of the family while the husband is determined not to do anything to help, and decides to separate from such a husband, the position of law is that after divorce, the one either the husband or the wife, who has financial the means will take care of the other by maintaining the other party every from time to time until that other party gets back to his feet financially.

Thus, in order not to bore this reader with too many words, it is submitted that all a woman wishes to protect using statutory marriage is almost impossible (which is sad) considering the present-day happenstances yet get hooked therein in the case the marriage turns otherwise. And like an Oliver twist, all that a woman seeks to protect under statutory marriage can be protected under the customary marriage which even allows a woman to walk out of marriage easily compared to that of the statutory marriage.

It is affirmed that another reason women contract statutory marriage is to adequately protect their children which in its stead, can be enforced through customary marriage. The law as of today is that a child of either a customary or statutory marriage can maintain an action (through any one of the parents) against his or her parent in the event the mother or the father as the case may be, has refused to take care of him or her upon dissolution.

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Section 14 subsection 2 of the Child’s Rights Act provides every child with the right to maintenance by his parents or guardians in accordance with the extent of their means, and the child has the right, in appropriate circumstances, to enforce this right in the Family Court. This means that a child either of a customary marriage or statutory marriage can maintain an action against his or her parents in the event that one of them has refused to take care of him or her upon dissolution.

The synopsis of the above-mentioned provision is to the effect that the law on Child’s Rights is futuristic enough to identify the fact that couples have the inherent right to separate (either by divorce or judicial separation) yet they must take the decision in such a manner that the best interest of the child is taken into consideration. This is the reason that in every divorce case, be it a statutory or customary marriage, the court shall order consequential and ancillary reliefs to the grant of dissolution of marriage which in particular affects the child.

It is in view of all aforesaid that this piece posits as follows;

  1. statutory Marriage makes the choice of departing or ending one’s marriage when the need arises stringent and difficult while exposing such a party to serious health danger in the hands of an abused partner;
  1. prevention against cheating, adultery, and others in that regard aren’t good grounds for considering a statutory marriage due to the prevailing situations and happenstances in marriages of today;
  1. virtually all rights one intends to claim also exist in a customary marriage and which in fact can be enforced while one holds the right to get out of a marriage when it turns otherwise;
  1. not all issues are ironed out during courtship, therefore, there is a need to be on the safer side rather than on the fighting side. That is to say, on the side of instituting an action in court for a divorce; and lastly
  1. customary marriage seems to be the best alternative option to statutory marriage in the present-day situations.

(C) Qudus A. Alalafia, Esq. alalafiaqudus@gmail.com, 07034479679

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