By HW Emmanuel J. Samaila
Unlike the requirements for the dissolution of statutory marriages, there is, generally, no ground for the dissolution of a marriage under customary law. The requirement that a marriage has “broken down irretrievably” is one of the grounds listed in sections 15 and 16 of the Matrimonial Causes Act 1970, now Cap. M7 Laws of the Federation of Nigeria 2004, for the dissolution of statutory marriages. The inherent danger in using the expression in a proceeding for the dissolution of a marriage under customary law is that it may inadvertently influence the mind of the court to adjudicate in accordance with the principles applicable to statutory marriages. Imposing such an unwarranted burden on parties, who are bounded by customary law only, will invariably occasion a miscarriage of justice as the dictates of a foreign law is being invoked to resolve their dispute.
As earlier stated, there is no ground which must be proved to exist or an event which must be shown to have occurred as a condition for the making of an order dissolving a customary marriage. While there are some factors that may necessitate the dissolution of a customary marriage, there is no reason not to dissolve a marriage so long as one of the spouses has expressed dissatisfaction with the union coupled with an express or implied willingness to discontinue the relationship. In fact, in most cases, filing a divorce petition is the last symbol signifying the petitioner’s resolve to leave.
In his book, Family Law in Nigeria (Revised edition) Heinemann Educational Books (Nigeria) Plc at page 217, E.I. Nwogugu, stated that:
“Technically, there are no grounds for divorce under customary law because divorce may be effected by the mutual consent of the spouses. However, there are a number of reasons and situations which are generally regarded as providing sufficient moral cause for dissolving marriages. They include, inter alia, adultery (particularly by a wife), loose character, impotency of the husband or sterility of the wife, laziness, ill-treatment and cruelty, leprosy or other harmful diseases which may affect the procreation of children, witchcraft, addiction to crime (for instance, poisoning, theft or gangsterism), and desertion.”
More often than not, the wives, as petitioners, simply say: “I want this marriage to be dissolved because I am fed up.” Or “I want my marriage with the respondent to be dissolved because he has been maltreating me”. The wives almost always proceed to narrate the diverse nature of their discontent or the maltreatment. While petitioners are not required to state any ground for the order of dissolution they seek, the respondents get to hear, maybe for the first time, the actual reason for the petition. This phase in the divorce proceedings is important as it often reveals information which may be vital to a party while seeking reconciliation during the pendency of the matter.
In a nutshell, unlike in statutory marriages, there is no reason for a Customary Court to refuse making an order dissolving a customary marriage. The judicial validation and enforcement of this customary right is one of the beauties of customary marriages. Of course, while it may be subject to abuse, the continuous existence of the uninhibited right to leave a loveless union is more than enough reason to cause spouses bound by customary law to value, respect and cherish each other.
HW Emmanuel J. Samaila – Upper Customary Court, Kaduna-Nigeria