DISSOLUTION OF MARRIAGE: PROBLEMS AND PROSPECTS.

ABSTRACT

The decree of dissolution of marriage which is defined as the legal separation o f man and wife effected by the judgement or decree of a court, and either totally dissolving the marriage relation, or suspending its effect so far as it concerns the cohabitation of the parties.

Dissolution of marriage seems to be on the increase these days, this is due to the fact that people rushed into ill-advised marriages and they decided to rush out of these marriages as soon as they discovered that their marriages are not what they expected. Therefore, no proceedings for dissolution may be instituted within two years of marriage without leave of court except where divorce proceedings are based on the facts of wilful and persistent refusal to consummate, adultery or the commission of rape, sodomy or bestiality.

The subject matter of this research is to examine the nature and the conditions for dissolution of marriage, the likely problems that tend to follow and prospects. However, the study will further discuss the various types of marriage, validity of customary marriage and statutory marriage, capacity and formalities of marriage.

In carrying out this research, emphasis will be laid on the various grounds for dissolving statutory marriage under the Matrimonial Causes Decree and the Marriage Act 1970 and customary marriage under the customary law. Also, the differences between dissolution of customary marriage and statutory marriage. But, it should be noted that, it is not the intention of the researcher to see that marriages which are ordained by God and which were hitherto, build on mutual trust and confidence between the parties and their families go asunder. But rather, to discourage spouses on dissolution of their marriages by providing a lasting solution to this, in order for us to have a better society and also to consider the pathetic effect of such on the society, children and family.

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

It is universally accepted that, marriage is the union between a man and a woman.1Marriage is a universal institution, which is recognised and respected all over the world. Therefore, marriage is a contract whereby the parties enter into a legal relationship involving rights and obligations. As a social institution, marriage is governed by the social, religious and legal norms of the society. Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

The domestic relation laws of most states and particularly of the state of New York define marriage as ‘a civil contract to which the consent of the parties is essential…’

Unlike most European countries, two systems of marriage are recognised in Nigeria- the monogamous and polygamous systems. These two systems differ
fundamentally in character and incidents. Based on this, in every case concerning marriage, the lawyers has in the first instance to determine the type of marriage involved in order to enable him apply the appropriate law to determine the incidents.

A monogamous marriage in Nigeria is the same as in England. It is the marriage which Lord Penzance in Hyde v Hyde2 described as ‘…..the voluntary union for life of one man and woman to the exclusion of all others’.

A polygamous marriage may be defined as a voluntary union for life of one man with one or several wives. Its essential characteristic is the capacity of the man to take as many wives as he pleases. The character and the incidents of the system are governed by customary law.

This essay therefore, is set to examine the problems of dissolution of marriage and providing a solution to it. It is of paramount importance to shed light to this. Dissolution of marriage is the breaking up of a union.

Dissolution of marriage has its unpleasant impact, not only on the couple and their children but also on the society as a whole. Children of divorced marriage are usually the black sheep in a family set up and in the society as a whole. If, we should consider the resources the government expends in curtailing social problems in the society, then one should endeavour to proffer solution on one of the problems that actually precipitates social problems in our society.

However, dissolution of marriage has its great implication; it causes great emotional stress to the couples, their children and relations. It also has its great socio and economic problems to the nation. Most of these children develop psychological problems or even health problem. Such children may eventually become criminals due to lack of parental care as a result of the broken home syndrome.

Children are the future of a nation. They deserve proper care. They need proper education and attention. They need good health and emotional stability. They need to be taught patriotism, self discipline and good deed. Stability in the home can only ensure all the above. Where this is lacking, a child will be denied all the above and this will not augur well for the stability of our society and the future of our nation may be put in jeopardy. How will the future of a nation be where its future leaders are emotionally traumatised as a result of the dissolution of their parents’ marriage

1.1.0: BACKGROUND TO THE STUDY

Marriage has been defined as the civil status condition or relation of one man and one woman united in law, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

However, dissolution of marriage is the legal separation of man and wife, effected by judgement or decree of a court, and either totally dissolving the marriage relation or suspending its effect so far as it concerns the cohabitation of parties.

The study is concerned with the problems of dissolution of marriage and likely solutions. As it will be pointed out later, there are different types of marriage.statutory while the other ones are customary and Islamic in nature and they differ fundamentally in character and incidents.

Dissolving or bringing to an end a statutory marriage ought not to give room to any controversy as such because the grounds for dissolution of man are well spelt out by the statute. It should be noted that at the time of dissolving a marriage, the legal system, and the parties, can use the occasion to survey the history of the marriage, to weigh and evaluate the contribution made to it by each spouse and to arrive at a final balance sheet. Instead of abrupt termination without legal process, which may cause some detriment to either of the party?

 

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