Traditional marriage and the law in Nigeria.

In Nigeria, three forms of marriage are recognized, customary, Islamic, and legislative marriage. Customary marriage is a marriage contracted under the native law and customs of any place in Nigeria. The custom of the people where such marriage was contracted governs such marriage including its validity and its dissolution. 

Under statutory marriage, where there is a divorce between the couples, a high court in the state is where the petition is filed.  

Under customary marriage, these court proceedings are handled by the customary court or in some rare instances, the magistrate court where there is no customary court in the area.  

Anyone who wishes to dissolve his or her marriage in customary court approaches the court by way of petition. The petition often filed by the person’s lawyer contains brief particulars of the parties to the marriage and the brief facts about their marriage and issues in dispute and reliefs sought from the court. 

A copy of the petition is filled out at the customary Court registry of that court. The said petition is served on the other party to the marriage who will appear in the court on a named date as Respondent. 

In Customary dissolution of Marriage, the issues usually in contention are issues of custody of Children, property, and the issue of refund of bride price. 

CUSTODY OF THE CHILDREN

The usual attitude of the court is to award custody of children to the husband and not the wife. This is because, in a customary marriage, even a wife is the property of her husband. 

Yet, there are circumstances where the welfare of the children will take greater priority. The court will consider the age of the children of the marriage, their educational needs and their psychological need in determining who should be in custody. 

See Order 13 (1) of the Customary Court law of Ebonyi State for example which provides 

“In any matter relating to the guardianship of Children, the interest and welfare of the children shall be the first and paramount consideration.” 

This interest of the children considering their age may force the court to award custody of the children to their mother. 

 MARITAL PROPERTY 

When it comes to property jointly acquired by parties during the pendency of the marriage, a wife is often overlooked. As we said earlier, the wife is also the property of the husband. She is denied any right to property. 

But on the moral ground, the husband may allow her some properties and some clothing and beddings as unjust as this may sound. That is why contemporary court decisions have given women equal rights to property. See Edet v. Essien (1972) 11 NLR 47 
See also Article 16(3) of the Convention for the Elimination of All forms of Discrimination against Women (CEDAW) which provides for the same rights and responsibilities upon dissolution of marriage 

 REFUND OF BRIDE PRICE. 

In rare occasions, the husband may demand the return of the dowry as one of the reliefs before the court. The court has the power to order the refund of the dowry. The dowry can be paid to the court or directly to the husband. 

It is Worthy to note that the amount of money recoverable as bride price depends on whether the wife has given birth or not. The full money paid during the wedding ceremony can be recovered only when the wife has not given birth. see the case of Egri v. Uperi (1974)4 E. C. S. N. L. R. 632 

NON-JUDICIAL DIVORCE

The party to a customary marriage may not go through the rigorous process of court proceedings. In this case, there are two modes used to dissolve a customary marriage by non-judicial means: 
a. Mutual consent 
b. Unilateral action of one person 

MUTUAL CONSENT. 

In marriage, two families are involved (the family of the bride and the family of the groom). By mutual consent of the two families, the marriage between the parties can be dissolved. This happens when the two families have tried every means to reconcile the parties to no avail. 

UNILATERAL ACTION OF THE PARTIES. 

Where any of the parties to customary marriage desires to terminate the marriage, he or she can do that by simply informing the other party that he or she is no longer interested in the marriage. 

Such expression of intent to terminate the marriage may be, in the case of a woman, relocating back to her father’s house or any place she desires to go to. In the case of a man, the man may throw his wife out of his house including her properties. 

The man can as well take the wife back to the parents and inform them that he no longer wants to continue the marriage. In extreme cases, the man may also demand a refund of the bride price. 

GROUNDS FOR DISSOLUTION OF CUSTOMARY MARRIAGE

There is no compulsory ground that needs to be established before customary marriage can be dissolved. Unlike statutory marriage, where the matrimonial causes Act specifically stated that for statutory marriage to be dissolved, it must be established that the marriage has broken down irretrievably. See Section 15 of the Matrimonial Causes Act. 

For customary marriage, the only thing necessary is that the parties or one of the parties has lost interest in the marriage and seeks to dissolve the marriage. 

However, even though special circumstances need not be established, the following grounds can facilitate customary divorce: 
a. Contagious diseases. 
b. Willful refusal to consummate the marriage. 
c. Impotency. 
d. Laziness or bad character 
e. desertion 
f. adultery