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.
ISSUES
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.
RELIEFS
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.