Call anytime+234 810 159 9159
Although all human relationships are prone to disputes at one point or the other, when it comes to matrimonial disputes, a lot is at stake. This therefore underscores the need to deploy alternative mediums to resolve matrimonial disputes as against litigation which has proven adversarial in nature.
This article seeks to highlight Matrimonial Causes, the ineffectiveness of the traditional means of dispute resolution in resolving matrimonial disputes, alternative dispute resolution mechanisms suitable for resolving matrimonial disputes, and the benefits of resorting to alternative dispute resolution mechanisms.
HIGHLIGHTS OF MATRIMONIAL CAUSES IN NIGERIA
Matrimonial Causes
By the provisions of section 114 (1) of the Matrimonial Causes Act, matrimonial disputes/causes are proceedings for a decree of dissolution of marriage; nullity of marriage; judicial separation; restitution of conjugal rights; and jactitation.
Interestingly, spouses confronted by challenges in their marriage often opt for dissolution of the marriage because they are unaware of other reliefs prescribed by the Matrimonial Causes Act. Depending on the circumstances and choices of parties, by the Provisions of section 114 (1) of the Matrimonial Causes Act, matrimonial disputes/causes include proceedings for a decree of dissolution of marriage; nullity of marriage; judicial separation; restitution of conjugal rights; jactitation.
The Marriage Act and the Matrimonial Causes Act are the primary legislations governing the consummation and dissolution of marriage in Nigeria.
1. Decree of Nullity of Marriage
An application for nullity of marriage can be invoked where the marriage contracted by two persons is void or voidable.
Section 3 of the Matrimonial Causes Act provides the grounds upon which a marriage is void. These grounds include:
By the provisions of section 5 of the Matrimonial Causes Act, the grounds upon which a marriage is voidable at the instance of a party to the marriage include:
2. Dissolution of Marriage (Divorce)
This is a process whereby either party to a marriage files an application in Court usually by way of a petition and seeks the order of the Court for the dissolution of the marriage. Unlike other jurisdictions where divorce is obtained by execution of divorce paper, in Nigeria, divorce can only be obtained by an effective order of court dissolving the marriage. It is imperative to understand that only parties to a valid marriage under the Act can seek to dissolve the marriage. This means that third parties, irrespective of their roles and influence cannot unilaterally seek to dissolve the said marriage. Importantly, only a valid and legally contracted marriage can be dissolved.
The mantra or ground upon which a marriage can be dissolved in Nigeria is that such marriage has broken down irretrievably[i]. The Act further highlighted circumstances that give rise to the ground that a marriage has broken down irretrievably[ii]. For a marriage to be said to have broken down irretrievably, these circumstances underlined by the act must exist disjunctively and not necessarily conjunctively.
3. Judicial Separation.
This option exists where a party dissatisfied by the present disputes in a marriage envisages the possibility that there exist possibilities that such disputes can be resolved in the future and the spark in the marriage can be restored. The Act provides that the ground for Judicial separation is akin to the ground of dissolution of a marriage provided by the Act[iii].
Here the aggrieved party (Petitioner) seeks to be relieved from the duty of cohabiting with the other party (Respondent). It is key to understand that the petitioner is only relieved of the obligation of cohabitation and that an order for judicial separation has no effect on the marriage, the parties’ status, and the rights and obligations of the parties[iv]. The fact that a decree of Judicial Separation is in effect does not stop either of the spouses from proceeding to seek a dissolution of the marriage[v].
This Order is essentially made with the hope that parties may seek reconciliation in the future. Either of the parties to the marriage may apply for an order seeking to discharge the decree with the consent of the other spouse if both parties resume cohabitation.
4. Restitution of Conjugal Rights
One of the important incidents of a valid marriage is cohabitation by spouses to the marriage. Where without cause or excuse one of the parties to the marriage refuses to cohabit or render conjugal rights to the petitioner, the petitioner can proceed to apply for the restoration of his/her conjugal bliss. Failure of a party to grant conjugal rights on its own without more is a ground for dissolution of the marriage.
5. Jactitation of Marriage
It is relevant to understand that certain rights and responsibilities are inure in a valid marriage. Where therefore, a petitioner alleges that he/she is not legally married to a Respondent and the Respondent is wrongfully and persistently boasting or asserting that he/she is married to the Petitioner, the Petitioner may apply to the Court seeking an Order of Jactitation of Marriage[vi]. Where the Order is validly obtained, it has the effect of restraining the Respondent from falsely boasting and asserting that a Marriage has taken place between the Respondent and the Petitioner. Failure by the respondent to comply with the restraining order will constitute contempt and give rise to dire consequences which could include imprisonment.
HAS LITIGATION BEEN AN EFFECTIVE MEANS OF RESOLVING MATRIMONIAL DISPUTES?
The utmost desire of a party who has elected to institute an action is that the dispute be resolved with dispatch and he/she be restored to the position he was in before the said dispute arose. When it comes to matrimonial disputes, disputants aside speedy resolution might desire possible reconciliation and re-enactment of their relationships. This is a remedy that cannot be guaranteed by litigation.
The hurdles and adversarial requirements of the Nigerian Justice system are cantankerous and leave parties torn apart and sometimes in worse positions than they were before the commencement of the said action. Matrimonial disputes especially where children are involved are volatile and should not be subjected to such adversarial systems.
Significantly, matters instituted by the Petitioner rob the respondent of voluntariness as he/she is compelled to enter an appearance in Court. Where the said suit is contested, there are chances that it might take several years for the court to arrive at its resolution. Stiff and rigid rules are applied in litigation and the privacy of parties is far from safeguarded. This and many more reasons reduce the appeal of litigation as a means of resolving matrimonial disputes.
ALTERNATIVE DISPUTES RESOLUTION (ADR) MECHANISMS
This entails the deployment of alternative means other than litigation to facilitate dispute resolution. Some Alternative Dispute Resolution mechanisms include the following:
1. Conciliation
Conciliation involves the appointment of neutral third parties who are more of an advisor or bridge builders to aid in the resolution of the dispute. The prevailing law is the Arbitration and Mediation Act 2023. Any party desirous of initiating conciliation proceedings is required to notify the other party in writing stating a brief statement setting out the subject of the dispute and the conciliation proceeding is deemed to commence provided that the said procedure is accepted by the other party. The Conciliator upon hearing the parties draws up and proposes the terms of settlement which in his opinion represents a fair compromise for the parties. Where the terms are rejected by the parties, they may proceed to arbitration or seek redress in Court as they may deem fit in the circumstance[vii].
2. Negotiation
This is one of the first options that parties resorted to. It is a voluntary platform wherein parties to a dispute without the interference of a third party sit and seek to resolve the dispute between them. This is entirely informal and parties enjoy total control of the process and outcome. This in the opinion of the article author should be the first resort of parties to a matrimonial dispute as it gives them total control over the process and outcome, it is cost effective, less time is expended and the privacy of both parties is safeguarded.
3. Mediation
This is an informal non-binding technique wherein parties voluntarily employ the use of a third-party mediator to guide the process and lead the parties to mutually, voluntary acceptable terms of settlement. Either party to the mediation can walk away from the process at any stage. This process is highly recommended for matrimonial disputes as it is flexible, faster, cheaper, and voluntary.
4. Arbitration
This is a binding process wherein parties either by a pre-agreement or when the dispute arises submit to an Arbitrator or an Arbitral panel. Spouses who execute prenuptial or postnuptial agreements can insert a clause in the agreement to resort to mediation as a means of resolving disputes between them. The Arbitrator(s) makes a decision referred to as an award and such a decision is binding and enforceable by a court of competent jurisdiction. The governing law is the Arbitration and Mediation Act of 2023.
While Arbitration is an alternative form of dispute resolution it is not best recommended for matrimonial disputes as it is quite expensive, it takes a long time to prosecute, parties have little or no control over the process and outcome and most times is as rigid as litigation.
WHY RESORT TO ADR IN RESOLVING MATRIMONIAL DISPUTES?
1. Voluntary and Party Driven
Unlike Litigation where the Respondent is mandated to open a defense or risk Judgment being delivered in favor of the Petitioner, ADR mechanisms such as Negotiation, Mediation, and Conciliation are initiated where both parties voluntarily submit to the process and determine the Coram where applicable. Significantly, parties determine how the process is conducted and the outcome of the process.
2. Preservation of relationship between parties.
Mediation, negotiation, and conciliation all have the tendency to preserve the relationship between parties. In certain cases, parties already in litigation resort to mediation and are able to settle their differences thereby eliminating the need for further litigation. Spouses who have obtained a decree for judicial separation can utilize Mediation to resolve their differences and have the decree discharged.
3. Time and Cost effective
ADR Mechanisms such as mediation and negotiation are cost and cost-effective than traditional litigation. While it is conceded that no ADR mechanisms can effectively dissolve a marriage, where Negotiation or Mediation is resorted to before instituting an action for divorce, issues surrounding custody and maintenance of the children, where such children are below the consent age of 18 years are adequately resolved by the spouses thereby ensuring that the dissolution process is seamless and conducted without undue delays.
4. Offers Privacy and Confidentiality.
Spouses share a bond that should not be exposed to public glare. Significantly, Matrimonial disputes such as dissolution of marriage can be quite messy. Thus, Mediation and Negotiation essentially offer privacy and confidentiality to both parties and their children and further protect them from emotional and psychological trauma. This is a feat that cannot be guaranteed to parties by litigation as it is a process open to the public.
[i] Section 15(1) of the Matrimonial Causes Act
[ii] Section 15(2) and 16(1) of the Matrimonial Causes Act
[iii] Section 15(2) and 16(1) of the Matrimonial Causes Act
[iv] Section 41 of the Matrimonial Causes Act
[v] Section 44 of the Matrimonial Causes Act.
[vi] Section 52 of the Matrimonial Causes Act
[vii] Section 55 of the Arbitration and Conciliation Act, Cap A18, LFN, 2004
Written by Ovye Isreal for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com