Saturday, 21 April 2012

Advocacy for Better Implementation of Women’s Right in Divorce

STATUTORY OR ACT MARRIAGE The law regulating dissolution of statutory marriages is provided by the Matrimonial Causes Act. By virtue of the provisions only one ground for dissolution is recognised namely the irretrievable breakdown of Marriage.

This ground has to be proved by establishing such facts as:
! Willful refusal to consummate,
! Adultery and the fact that petitioner finds it intolerable to live with the respondent.
! Conduct which the petitioner cannot reasonably be expected to bear and the respondent does not object to the divorce being granted;
! Desertion for one year
! Living separate and apart for a period of three years.
! Death of either party.

There is a general prohibition against the presentation of a petition for divorce within two years of the marriage. Perhaps to encourage the spouses to work at the initial difficulties encountered.

Divorce Petition for an Act marriage can only be filled before a State High Court and no other Court.

Unlike in the previous laws on marriage, the Court no longer considers who is at fault in deciding to dissolve a marriage so long as one or more of the facts stated above are proved. Women get discouraged from filling divorce petitions because of their inability to meet the high cost of litigation.

Many women suffer a lot of financial hardship during the divorce proceedings because of the failure of Judges to award ancillary relief to women while the case is pending. Many women thus get frustrated with protracted divorce cases during which they are unable to support themselves.

Lawyers need to present claims for financial support for women who are in a lower financial status than their husbands during the divorce proceedings to ensure that the women enjoy the life they were used to during the Marriage. In addition the Lawyers should ensure that the husbands are made by order of court to pay for the cost of the Divorce so as not to force women to a bad marriage on account of lack of finance to file Divorce Petition. Judges need to understand the rights of the spouses to a Marriage irrespective of their sex. Judges should therefore award the necessary financial relief to women with lower financial capacity than their husbands while the divorce petition is pending.

Custody: In disputes relating to custody of children of Statutory Marriages the court may make any of the following orders.
1. Care and residence order or care and control order.
2. Sole Paternity custody
3. Sole Maternity Custody order
4. Joint Custody

Custody of children of statutory Marriage by law puts the interest of the child as the paramount consideration therefore the best interest of the child should be considered in awarding custody but this is not so because the judge who is a stranger to the parties decides what is best for the child. Custody is usually awarded to the man leaning basically towards culture.

Afonja Vs. Afonja
The Trial judge had awarded legal and actual custody of the 7 year old daughter of the marriage to the father purportedly for the following reasons:
a. The father, a Medical Doctor had a good job and could thus provide all the material needs of his daughter.
b. The child’s mother, because she had not adhered to her Anglican upbringing and had not done enough to prevent the break-up of the marriage did not deserve custody of the child. On appeal the Court held that custody was not a penal order and should not be used as a penal instrument to punish parent for supposedly bad conduct during her the marriage. Reversing the decision of the trial judge custody of young children, secondly the arrangements made by the father in which care of the child was left to his sister based in another town was not ideal.

Oyelowo Vs. Oyelowo
On dissolution of the marriage, custody of the two boys of the marriage, aged 7 and 9 who had been living with their mother since the parties separated, (about 2 years before the divorce was finally granted) was awarded to their father in spite of the act that during the period of separation their father had not made any attempts to see the children nor had he made any financial contribution towards their upbringing. The trial judge was convinced that since they eventually take the position of “Dawodu” in the family custody, actual and legal must be with their father.

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