Almost everyone agrees that divorce should be the last option to the resolution of a troubled marriage. Many marriages are troubled from the start and so the end usually has come quite early before the smoke of the tell tale signs start to show. Many people have also found solace and happiness in re-marriage and so all needs not to be lost.
There are myriad reasons why a marriage fails, and even many more why people hold on to a dead relationship, now re-christened ‘for the sake of the children’. Death does not seem to move a doctor, especially a surgeon, because he is accustomed to it, just as in the same way, a good marriage counsellor may counsel separation of the couple, where it is apparent that the marriage has broken down irretrievably.
What is the meaning of that? When is a marriage deemed to have broken down irretrievably? The law in Nigeria recognises only one reason for divorce – that the marriage has broken down irretrievably. It then gives situations or reasons where the court can determine that the marriage has so broken down. Divorce is not a thing to be taken lightly, it shatters people emotionally and can be a continuing undesirable expense, but then many people stay together ostensibly in a marriage that technically does not exist in the eyes of the law. What do the religious leaders say about that……… I leave that to them?
……..but before we talk about divorce it is imperative that we determine whether the union is a valid one.
There is a trend that has taken root in our country and seems to have permeated the fabric of society. The celebration of two lawful marriages, one after the other, especially among Nigeria’s southern people has gained such ground that no one stops to think about the implications arising. We have it in our psyche that we must celebrate a traditional marriage as well as a marriage commonly called court or church marriage. Yet our law says you cannot contract a court marriage if you are married to someone under customary law. The level of expenditure and colossal waste of money is determined only by the pocket or borrowing power of the parents or the celebrants themselves. Sometimes the parents take over and one wonders who is getting married. The standard of living of the couple after the ceremonies, does not justify the expenditure at such marriage ceremonies. I apologise……I digress.
Many people who get divorced today, after a double-decker marriage only get a single-decker divorce. Are they still married to their former spouses by traditional law?…..Why did you give that answer? Was it convenient in the circumstances to give such an answer? Don’t forget that it is the traditional marriage that usually comes before the court or statutory marriage.
During the divorce of Mr and Mrs Ohochukwu on 27th October 1959 in United Kingdom, Justice Wrangham ruled that as far as English law was concerned the parties were properly married. The parties were Nigerian Christians and they celebrated a customary law marriage in Nigeria in 1949. This kind of marriage was and still is a valid marriage under Nigerian law. The couple relocated to England and they went through a ceremony of marriage at the St. Pancras Marriage Registry in London on 24th July 1953. This was to enable the wife to produce a marriage certificate in England for her needs and not because they had any doubt about the validity of their Nigerian marriage. Subsequently things turned soured and she sought a divorce. Wrangham J said:
“…In those circumstances, I have come to the conclusion that whatever might be the effect of the parties being Christians on the marriage for other purposes and in other courts, in this court and for this purpose the Nigerian marriage must be regarded as a polygamous marriage over which this court does not exercise jurisdiction. I, therefore, pronounce a decree nisi for the dissolution not of the Nigerian marriage but of the marriage in London. I am told that in fact that will be effective by Nigerian law as at present understood to dissolve the Nigerian marriage; but that forms no part of my judgment: that is for someone else to determine and not me…”
Wrangham, J. refused to dissolve the customary marriage because the English courts at that time lacked jurisdiction to dissolve a polygamous marriage. He did not decide the point that the dissolution of the statutory marriage was sufficient to dissolve the customary marriage. He left this point for someone else to decide.
The Justices of the Supreme Court seem not to have stated a very clear position in the local decisions studied. Society views such marriages as monogamous……but society does not make the law. So what to do? There are three kinds of positions taken by lawyers over this matter.