Saturday, 21 April 2012

Advocacy for the Implementation of Property Rights of Women in Customary Law Marriage

This is the marriage contracted in accordance with the customary laws of the place the marriage is been contracted. Unlike the monogamous form of marriage, it is the union of two or more families.


Customary law marriage may be polygamous in nature. Basic constituent elements of a customary law union have been judicially recognised to comprise the following: (ethnic variations do exist).
! Parental consent to the union.
! Bridal consent
! Payment and acceptance of the bride price or dowry.
! Handing over of the bride to the groom’s family.

Marriage under customary law is invalid where:
! the parties are blood relations,
! Where there’s no consent by the two families

For instance, in the case of OSAMWONYI Vs. OSAMWONYI, the High Court decided that a girl should not be forced to marry a man without her consent even if he man has paid her bride price as it would be repugnant to natural justice, equity and good conscience.

Customary Marriages are marriages contracted in accordance with Native law and custom which vary from place to place. Customary marriage is potentially polygamous as the husband has the legal capacity to marry other wives under the customary or Islamic law.

It is possible to convert a potentially polygamous union into a monogamous union provided the parties to the marriage are the same parties converting their marriage Statutory / Act Marriage.

The Rules of evidence relating to the competence and compellability of spouses do not apply to parties married under native law and custom.

Although extra judicial dissolution are permitted, the customary courts established by the various state customary court laws are the courts with competent jurisdiction to hear a petition for the dissolution of customary law marriages. Appeals however lie from the customary courts to the High Courts. The president of the customary court is a legal practitioner, and the parties may have legal representation.

Since 1958, the applicable laws regulating the dissolution of customary law marriage has been regulated by local legislation, namely the Marriage, Divorce and Custody of Children Adoptive By-Laws Order 1959 applicable in the states carved out of the now defunct Western Region of Nigeria. Section 7 of the above legislation contains an exhaustive list of the grounds on which dissolution can be sought. These include inter-alia:
• Betrothal under the marriageable age;
• Refusal of either to consummate the marriage;
• Harmful diseases of a permanent nature, which may impair fertility of the woman or virility of the man;
• Impotence of the husband or infertility of the woman;
• Ill-treatment, cruelty, neglect;
• Lunacy;
• Adultery;
• Leprosy contracted by either party;
• Desertion for a period of two years or more.
• Witchcraft
• Childlessness
• Lack of male children

It appears however that no divorce shall be ordered in where the applicant/petitioner is;
• The wife who is still nursing a child under three years;
• A wife with three children or more by the husband unless there are special reasons for making dissolution order.

Case study
In the case of MUSIRATU ABEKE VS. JOSEPH SODIYA - Habitual drunken state of the husband coupled with physical violence towards the wife was held to be a valid ground for divorce.

In another case of YESOLA ABAKE VS. OMOLAGBE -Divorce granted on the ground that the respondent was weak and impotent.

The two families can agree to dissolve the marriage and refund the bride price to the husband. The village head can break the marriage. Customary marriage can also be broken in the customary court. It is important to note that a woman cannot by herself take out a…… for dissolution of customary marriage it has to be done through a male relative, same goes for return of dowry.

Custody under Customary Laws
As a result of the patriachial system there is a general belief that children belong to the Father. This notion has been outlawed by the provision of the Customary courts Laws of the various States constituting the old Western Region. This provision provide that:

“in any matter relating to the guardianship and custody of children the interest of and welfare of the child shall be the first and paramount consideration”.

In practice the customary courts headed mostly by men usually award custody of children to the men particularly the male children. So also are decisions made by Traditional Rulers in adjudicating over such matters in their domain do not follow the law as laid down in Customary Courts Laws. However there are now cases where the courts have decided issues of custody based on the welfare and interest of the children being of paramount consideration.

Below are cases for Comparison
Okwueze Vs. Okwueze
A highly contested custody suit, which started in the Ondo Customary Court and ended in the Supreme Court. There were 5 issues of the marriage all under the age of 16, custody of the children had been awarded by the customary court to their father, irrespective of the fact that the customary court laws applicable in Ondo State provided that “in any issue relating to the custody or guardianship of children, the welfare of the children shall be the paramount consideration”. About seven years later when the appeal finally arrived at the Supreme Court it was held that the welfare of the children was a question of fact to be determined by a consideration of many factors such as means of the parties, wished of the children, conduct of the parties etc. A failure to consider all these factors means that the Court had not done justice to the case, consequently the Supreme Court order a retrial of the custody issue in order to ascertain where the best interest of the children lay.

Omodion Vs. Fasora and Anor.
A customary marriage can only be decided by the customary not by the high court. The following were also considered to be the rules of thumbs:
a. Where the child is unweaned, interim custody is awarded the mother even if she is the guilty party in the divorce.
b. Where the child has attained the age of about 5 years the courts will consider who can best take care of the child.
c. A party with no independent means of income is unlikely to obtain custody.
d. The sex of the child is also taken into consideration, a female is considered more comfortable with the mother and a son with the father.
e. The Court may refuse to grant custody to either parent if the court is convinced that none of them is capable of giving the child the nest care. In such a case the court may award custody to a guardian usually a relative.

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