Family law is an area of the law that deals with family matters and domestic relations. Hence the success of marriage must eventually lead to the success and development of the society. Where however marriage is marred with multiple problems and instability, no meaningful family life and relationship can be achieved and that may lead to the degeneration of the entire society. Nowadays in our society, spouses are ignorant of their rights as well as their corresponding duties that are imposed by law in relation to marriage. Also rights of wives are being violated, especially the right to maintenance and general care. Consequently this dissertation aimed at examining Nigerian Family Law Its Actuality And Existence. This dissertation is thus divided into five different chapters: Chapter one contains the background to the study, chapter two reviews the nature of family law in Nigeria, chapter three elaborates on Family Property And various Sources Of Family Laws existing in Nigeria, chapter four contains a detail analysis on Legal Effects Of Marriage in Nigeria.
TABLE OF CASES
English case of Corbett V Corbett (1947) All ER 187 2
Hyde V Hyde (1886) LRIP&D 130 3
Amusan V. Olawunmi (2002) 12 NWLR Pt 780, 30 at 53-54 8
Ekpham V Henshaw 10 NLR 65 11
Martin Laduni Kosoko V Momodu Oteniya Kosoko and others 13NLR 131 13
Mary Atua Nelson V Samuel Curshie Nelson I WACA 215 13
Akapo V Habeeb Hakeem (1992) TSCNJ 119 14
Frank Akinhanmi Coker V. George Baptist Coker and Ors 14NLR 83 18
Sanni Sule V Badun Ottun I NLR1 60 1911 18
Akinyemi V. Francis Kehinde 18NLR 127 19
Ogunmefun v Ogunmefun 10 NLR 82 19
Adeseye v. Taiwo (1956) 1 FSC 84 19
Adeseye v. Taiwo (1956) 1 FSC 84 20
Emeakuana V Umeokiako, suit number AA/IA/76 High Court of Awka 15/10/76 22
Oransaye V. Osanweyi 1972 10NSC 22
Beckley V. Abiodun 1943 17NLR 59, Nkedionwe V. Okafor 1966 – 1967 10 ENLR 78 24
Chawere V. Aihenu and Johnson 1935 12NLR 4 24
Erhobare V Otebrise (1971) UTLR 33, Solomon Vs Chukwu Alu 1972 ESCLR 619 25
Lawal v Younan (1959) WNLR 155: (1959) 1 All NLR 245 27
Mbonu v. Mbonu (1976)1 FNR 57 36
De Reneville V De Reneville (1948) AllER 56 36
Osamwonyi v Osamwoyi(1972) IO SC 39
Oshodi v Oshodi (1963) 2AllNLR 214 39
Criminal Code Act and R v Princewill (1963) NNLR 54 39
Akwudike v Akwudike (1963) 1 ENLR 42
Akpan v. Akpan (suit WD/12/67 (unreported), Lagos, 27, July 1968), 44
Smith v Smith (1947) 2 AllER 741 47
Rosanwo V. Rosanwo (1961) WNLR 287 49
Chwukwuma v Chwukuma (1996) 1NWLR 543 50
See Pulford v Pulford (1923) P18 51
Asomugha v. Asomugha (Suit No HD/102/72 Lagos High Court), 51
Egunjobi v Egunjobi (1974) ECNLR 552. 53
Attorney General of Lagos State v Dosumu (1989) 3 NWLR (pt 11) 552 54
Shyngle v. Shyngle (1923) 4 NLR 94 55
Zanelli v. Zanelli (1948) 64 TLR 566 60
Akere V Akere (1962) WNLR328 62
Aja V Aja (1972) ECSCR 140 65
Clarkson v. Clarkson (1930)143 LT 773; Hambury 66
Adeyemi v Adeyemi (1969),2 Act NLR18, 67
1.1 Background to the Study
The family is the smallest unit in the social structure of every society. It is accepted that the family is the basis of every human community and the family may be regarded as the nucleus of society.
Family law deals with the law regulating the legal relationship between spouses (i.e. husband and wife) the legal relationship between a guardian or curator and the person who is subject to guardianship or curatorship. The term “family” does not lend itself to easy and precise definition. In one sense the family may be defined as including all persons with common ancestors. Under this wide connotation, the family may embrace a large body of persons related by blood to a common ancestor. The relationship may be traced through males, as in patrilineal societies or through females in matrimonial societies. The extended family, a concept which is prevalent in Africa may also be included in this wide definition of family. Green defines the extended family as: “…a group of closely related people, known by a common name and consisting usually of a man and his wives and children, his son’s wives and children and probably other near relations”.
The term “family” may still be given a much more restricted connotation. It may refer to a smaller group consisting of a household – the man, his wife, the children and probably the dependants who live with him.
This is much closer to the concept of family in English law, which is restricted to the man, his wife and children. For the purpose of this study, the researcher will be treating family as a unit comprising the man, his wife or wives and the children.
It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex. Consequently, sex constitutes an essential determination of a marriage relationship. In order to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.
Ordinarily, this seems a straight forward question; the issue has been complicated by the existence of hermaphrodites and pseudo – hermaphrodites and advances in medical science which have made sex change operations feasible. In the English case of Corbett V Corbett (1947) All ER 187, the petitioner and the respondents had gone through a marriage ceremony in September, 1963. The petitioner knew that the respondents had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testes and created an artificial vagina, since the operation, the respondents had lived as a woman. In December 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively for a decree of nullity on the ground of either in capacity or willful refusal to consummate. The court held that the respondent had remained at all times a biological male and that accordingly, the so – called marriage was void.
Unlike most European countries, two systems of marriages are recognised in Nigeria – the monogamous and polygamous systems. These two differ fundamentally in character and incident. It is important to keep this dualism in view in every consideration of the marriage laws in Nigeria. A monogamous marriage in Nigeria is the same as in England. It is a marriage which Lord Penzance described in Hyde V Hyde (1886) LRIP&D 130 as the voluntary union for life of one man one woman to the exclusion of all others. The laws which govern the celebration and incidents of monogamous marriage in Nigeria is the Matrimonial Causes Act of 1970.
1.2 Statement of the Problems
(i) Failure to abide by the duty to maintain wives and children is one of the major sources of instability of marriage. Instability may also arise where the spouses do not know their rights. Instability in marriage has also being attributed to failure of the spouses to abide by the law.
(ii) In family issues it is often asked whether the women have any right at all in her marriage supported by law which can be enforced in the court of law, for instance a woman under Islamic law has the right to maintenance and where a husband is wanting in this obligation the wife is entitled to enforce this right by seeking redress in the court of law.
1.3 Aims and Objectives of the Study
The broad aims of this study is on Nigerian Family Law Its Actuality And Existence
The specific Objectives are:
- To investigate the Nature of Family Law In Nigeria
- To examine various source of family law in Nigeria
- To analyze family property and Sources Of Family Law in Nigeria
- To investigate the Legal Effects Of Marriage
1.4 Scope of the Study
This research work is limited to the customary laws in Iboland, Yoruba Land and Islamic Laws of matrimony in Hausa. The researcher also limited the study to Conflict of marriage laws and divorce and family property
1.5 Significance of the Study
In every society, the institution of family is very important. Its significance stands that no part of law and institution of a society or a country can be of a more vitally importance to its member or inhabitants than those which regulates the institution of marriage. Marriage is the basic unit of human civilization and its the first principle of the whole social structure and the foundation of a family is laid down through a marriage
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