ThisDay Newspaper

Children Caught Between Separation and Divorce in Nigeria Issues Reliefs

Published in This Day Newspaper September 16, 2014
Olakunle Allison LL.B(Hons.) B.L

When marriages stand on the brink of collapse, attention is given to the irreconcilable differences between couples. Needless time and effort are spent on pre-litigious considerations. This is sometimes at the expense the total wellbeing of the children of the marriage. Couples seeking a Decree of Order Nisi for a Judicial Separation, Nullity or a Dissolution of Marriage tend to be more engrossed in the legal burden of proving that the marriage “has broken down irretrievably”, so that the children of the marriage, who are often viewed as the spoils of war in the circumstance, are left uncared for, and if at all, inadequately catered for.
In most cases, couples in separation usually do not bicker over who takes custody of the children, especially if they are still infants or minors. The presumption is that the mother will usually have custody of them. It has been held in a decided Supreme Court case of Odogwu v. Odogwu (1992) 2 NWLR (pt. 225) 539 that this presumption is however rebuttable and can be impeached if, during court proceedings, for instance, it can be shown that e. g the mother is immoral, she has an infectious disease, she suffers insanity or is cruel to the child. The issue of custody of the children of the marriage is only secondary to the issue of the welfare, wellbeing and maintenance. These in fact guide the courts in awarding custody to either of the parties before it, whether the father or the mother. The issues are however not as straightforward and simple.
There appears to be little or no legal provisions as to the welfare and maintenance of children who are caught up in such peculiar circumstances under the Matrimonial Causes Act. However, the Child Rights Act, 2003 and other related legislations in States within the Federation have come to the rescue of children who are caught in this situation, and in need of adequate maintenance and welfare, as we shall later see.
Whereas the Act offers no relief to children who are caught in between separation and divorce, a large number of those affected continue to suffer and do not appear to take advantage of the law that is rightly in their favour. This is perhaps a reflection of the socio-cultural backdrop of family life in Nigeria. Most women who are separated from their husbands seem to be reluctant to file for divorce and opt for seemingly perpetual separation. This tentative arrangement makes it all the more imperative to ensure that legally binding arrangements are put in place for the welfare of the children.
The objective of this article is to raise awareness of the issues and especially highlight the reliefs which shall be discussed below.
The Matrimonial Causes Act, Cap. M7, Laws of the Federation of Nigeria, 1970 (the “Act”), Part IV, Section 69 defines “Marriage” for the purpose of Maintenance, Custody and Settlement to include the following children of a marriage:
(a) Adopted children by either or both husband and wife.
(b) Any child born before the marriage, whether legitimated by the marriage or not.
(c) Any child (including an illegitimate child of either of them and adopted by either of them) if, “at the relevant time”, the child was already a member of the household of the husband and wife.
It is worthy of note that the legitimacy or otherwise of a child of a marriage as contemplated by the Act appears to be inconsistent with Section 42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
This apparent inconsistency will have the effect of holding the above provisions of the Act void to the extent of their inconsistencies with the constitution- Section 1 (3) of the 1999 Constitution (as amended). It can therefore be argued that for the purpose of determining the legitimacy and otherwise of a child entitled to maintenance, welfare and so on, a child cannot be disadvantaged “by reason of the circumstances of his birth” anymore.

The law lays out the persons deemed to be children of a marriage but it does not give the same clarity as to maintenance, welfare and education of the children without a pending divorce or judicial separation proceedings in court.
Presently, there appears to be no leeway in our adjectival laws under the Act which allows a child (mostly through his mother or guardian) to make such claims independent of proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights or jactitation of marriage (See Section 114 (1) (a) of the Act).
A very careful and comprehensive reading of Section 70 (1) (2) & (3) and Section 114 (1) (c) respectively of the Act reveals that the Act contemplates that for a court (in this case the High Court) to make orders as to maintenance of the children of the marriage, there must subsist a pending “matrimonial cause” or “proceedings” as stipulated in Section 114 (1) (a) of the Act. The effect of these is that the powers of the Court to make orders as to maintenance, welfare, advancement and education of the children of the marriage are restricted by the Act to be granted only as reliefs ancillary to the principal prayer for any of decrees mentioned in Section 114 (1) (a) of the Act.
The rationale behind this may not be farfetched as already stated in a Court of Appeal decision in the case of Ugbah vs. Ugbah (2009) 3 NWLR (pt. 1127) 108, where Dalhatu Adamu U. J.CA reading the lead judgment held that:
“…the present suit or action by a wife against her husband for her maintenance and the welfare and education of the children of the marriage can only be commenced and instituted under the Matrimonial Causes Act and should be ancillary or incidental to a pending or concluded main relief as adumbrated above…The aim and purport of this prohibition is in the need to preserve the sanctity of the marriage institution and to avoid its possible breakdown or cause any dissatisfaction between or amongst the members of the family during the subsistence of the marriage. This is also the reason why the courts are reluctant even to grant the main relief unless it is proved that the marriage…has broken down irretrievably”
It appears from the foregoing that the law is yet to make express provisions for children caught between separation and divorce.
The Child Rights Act, 2003 (and the Child Rights Law of Lagos State, 2007, its equivalent) and subsidiary legislations have however offered some respite by way of reliefs. For instance the FIRST SCHEDULE (Section 55 subsection 14) of the Child Rights Act, 2003 have provided the following reliefs, amongst others, for such children. An application can now be brought before a Family Court at the High Court or Family Court at the Magistrate Court for an Order for:
a. Periodical payment to the children or to the Applicant for the benefit of the children.
b. Payment of a lump sum to the children or to the Applicant for the benefit of the children.
c. Enforcement of a Maintenance Agreement and Financials Agreement
d. Grant of an interim Order to make periodical payments to the children pending the substantive application.
e. Appeals.
Section 3 of the Child Rights Act, 2003 also adopted for a child the fundamental rights enshrined in Chapter IV of the 1999 Constitution (as amended) as follows:
“(1) The provisions in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999, or any successive constitutional provisions relating to Fundamental Rights, shall apply as if those provisions are expressly stated in this Act.”
By virtue of the Child Rights Law of Lagos State, 2007 (the “Law”), the Lagos State government in 2012 has also gone ahead to establish the Family Court of Lagos State (Civil Procedure) Rules, 2012 pursuant to Sections 138 and 139 of the Child Rights Law of Lagos State, 2007, while Section 150 of the Law empowers the Chief Judge of Lagos State to make Rules for the procedure that shall be applicable therein. The general jurisdiction of the Family Court is defined as follows:
Section 140 of the Law:
“—(1) Subject to the provisions of this Law and to such other jurisdiction conferred by any law, the Court shall have unlimited jurisdiction to hear and determine—
(a) any civil proceeding in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in respect of a child is in issue; and
(b) any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by a child or against a child or against the interest of a child.”
It is therefore apt to state that unlike in matrimonial causes proceedings in which the rights and interests of the children of a marriage are ancillary or incidental to the subsistence of the main relief and thus cannot stand on their own, the children of a marriage who in need of maintenance, welfare, advancement and education from parents, authorities, institutions etc. now have a recourse under the Child Rights Act and Child Rights Law of Lagos State respectively; particularly in Lagos State under the Family Court of Lagos State (Civil Procedure) Rules, 2012 being a subsidiary legislation.
Also, under the Child Rights Act, 2003, provisions are made for the registration of Voluntary Organizations/Homes, Community Homes etc. which promote the welfare of children, amongst other things. In this regard, there are Non-Governmental Organizations (NGOs) which act through the various State and local governments in the country in providing these functions.
It is also worthy of note that pursuant to Sections 264-269 of the Child Rights Act, 2003, we now have the State Child Rights Implementation Committee in which at least two persons representing organizations involved in the protection of the child in a State, and the Local Government Child Rights Implementation Committee in which at least two persons representing two community based organizations are members. These committees also offer useful reliefs for such children.
In conclusion, even though children of a marriage cannot seek certain reliefs independent of a pending Separation or Divorce proceedings as contemplated by the Act, the Child Rights Act provides a useful remedy to the inadequacies of the Act. It is important to note, however, that only 24 States of the Federation have domesticated the Child Rights Act in Nigeria; a trend the other States will do well to emulate.