Dissolution of a customary marriage is the bringing to an end a marriage not contracted under the statutory law of Nigeria. Thus it is not a statutory marriage and as such, the legal procedure for dissolving a statutory marriage does not apply to it. There are no provisions in the Matrimonial Causes Act for the customary marriage’s dissolution.
Customary law, which is the body of unwritten norms, rules and regulations accepted by a community and recognized, as binding on them is the main source of Nigerian family law. A customary marriage is one where spouses are married in terms of customs and tradition.
For a customary marriage to be conducted and valid it requires these various principles;
- The parties must be above the age of 18, which is the capacity requirement for a customary marriage;
- The consent of the bride and bridegroom is necessary to enter into a customary marriage;
- The consent of the father or guardian of the bride must be sought,
- There must be payment of bride price or dowry, which is both a gift and payment that may be monetary or natural produce essential for a customary marriage to be conducted;
- Finally, there must be a ceremony of marriage and handing over the woman to the man’s family.
A marriage contracted under customary law is valid in the eyes of the law, provided that it complies with the native law and custom governing marriage in that locality.
In dissolving a customary marriage, many cultures have binding principles that apply to that community. In some cultures, divorce is considered an abomination while in some society divorcee is said to occur where the bride price is returned to the parents of the bride. In the Islamic tradition, divorce is said to occur by professing divorce by word of mouth three times to the bride.
A customary law marriage can be dissolved without any judicial intervention or pronouncement, which means that the parties can end the marriage on their own without instituting any action in court for an order of dissolution of the marriage. But for dissolution to occur, there must be a formal intention act on the party who is tired of the marriage to bring it to an end. In most customs, the bride price and other marriage expenses are refunded to the husband seeking to dissolve the marriage and when this is done, the marriage can be said to have been dissolved.
However, it is most advisable that a party seeking to dissolve a marriage conducted under the customary law should do so through the judicial process in the nearest Customary Court.
Procedure for dissolving a customary marriage in Nigerian’s Customary Court
A customary law marriage can be dissolved by a judicial divorce
- Judicial divorce: this approach to divorce is sought where the option of reconciliation has been explored and failed. The reconciliation, in this case, is done by family arbitration to reconcile the couple. The court that has jurisdiction to hear the matter for dissolution is the Customary Court.
Customary marriage, like the statutory marriage, must have grounds for dissolution before the marriage can be dissolved by an order of the Customary Court, although the grounds are not as strict as required for the dissolution of statutory marriage.
There are grounds upon which a customary marriage can be dissolved, although not strict and particular are that the marriage has failed. Grounds such as the adultery, impotency of the man, cruelty, ill-treatment, desertion etc are required in dissolving a customary marriage depending in the Customary Courts.
The grounds for dissolution of the marriage at the Customary Court may generally include any of the followings:
- Refusal to consummate the marriage
- Harmful diseases of a particular nature that has affected the fertility of either the man or the woman.
- Impotency of the man or sterility of the woman
The Customary Court in dissolving the marriage would consider the duration of the marriage and conduct of the parties. Where a Customary Court dissolves a marriage, it is maybe further held that the bride’s price or dowry paid by the husband be returned to finally end the marriage.
Customary law is the law that governs a particular locality. A marriage contracted under customary law is valid so far the requirements and procedures are followed. In dissolving a customary marriage, the procedures are different from that of a statutory marriage, as customary marriage can be summarily dissolved.
There is no special judicial procedure for dissolution of customary marriage. In general, there are no strict and standardized grounds for dissolution of a customary marriage, howbeit, an emphasis is placed on the fact that the marriage has failed.
By Family Law Department at Resolution Law Firm, Lagos
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