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FAMILY LAW

(COURSE CONTENTS)

Family law is concerned with the law regulating the affairs of family life and family property. The Nigerian family law, was historically adopted from the English legal system based on colonial ties and is influenced by the general legal context that prevailed in England. The major statutes that guide family law in Nigeria are the Marriage Act and Matrimonial Causes Act, as contained in the Laws of the Federation 1999. As captured below, the topics generally border on the relationship within the family in Nigeria within the context of a democratic and civil society.

 

1. NATURE AND SOURCES FAMILY LAW

Meaning of Family Law

Links between Family Law and other Branches of Law

Fields Covered by Family Law

(a) The Law of Husband and Wife

(b) The Law of Parent and Child

Sources of Family Law

  1. Customary Law

  2. Judicial Precedent

  3. Statutes

 

2. ENGAGEMENT 

Engagement

  1. Consent

  2. Capacity to Act

  3. Lawfulness and Possibility

Requirements for a Valid Engagement

Incidents or Termination of Engagement

Breach of Promise

 

3. MARRIAGE

Definition and Nature of Marriages

Types of Marriages in Nigeria

  1. Monogamous Marriage

  2. Polygamous Marriage

  3. Islamic Law Marriage

  4. Customary Law Marriage

Legal Requirements for the Conclusion of a Valid Marriage

(a) Essentials of a Valid Marriage

(b) Prohibited Degree of Consanguinity and Affinity

The Celebration of Marriage

Consequences of Marriage

Legal Effects of Marriage

Cohabitation

Marriage of Minors

  1. Age of Marriage

  2. Marriage and the Rights of the Child

  3. Sex Abuse and the Child Right Act

  4. Consent Necessary for the Marriage of a Minor

 

4. VOID AND VOIDABLE STATUTORY MARRIAGE

Distinction between Void and Voidable Marriage

Void Statutory Marriage

Grounds which Render a Marriage Void

(a) Subsisting Lawful Marriage

(b) Prohibited Degrees of Consanguinity and Affinity

(c) Non-compliance with Lex Loci Celebrationis

(d) Absence of Real Consent

(e) Marriageable Age

Voidable Statutory Marriage

Grounds which Render a Marriage Voidable

(a) Incapacity to Consummate

(b) Mental Ill-health and Epilepsy

(c) Respondent’s Venereal Disease

(d) Pregnancy by Another Man

Statutory Bars/Defences to a Petition for Nullity of Voidable Marriage

(a) Limitation of Time

(b) Knowledge of the Petitioner

(c) Petitioner’s Approbative Conduct

(d) Disabled or Guilty Petitioner

Effect of Decrees of Nullity in respect of Void and Voidable Marriage

 

5. INVALID MARRIAGES UNDER CUSTOMARY LAW

Void Marriage

  1. Absence of Parental Consent

  2. Prohibited Degrees of Consanguinity and Affinity

  3. Non-Payment of Bride Price

  4. Customary Law Marriage by Non-Nigerians

  5. Marriage Under Maliki Law

Voidable Marriage

Irregular Marriage

Inchoate Marriage

 

6. VALIDITY OF STATUTORY MARRIAGE

Regulatory Laws for Statutory Marriage

Formal and Essential Validity of Statutory Marriage

(a) Essential Validity

(b) Formal Validity

(c) Legal Effect of Non-Compliance with Rules of Formalities

The Legal Status of “Foreign Marriages” in Nigeria

 

7. LEGAL EFFECTS OF MARRIAGE

Invariable and Variable Consequences of Marriage

(a) Invariable Consequences of Marriage

(b) Variable Consequences of Marriage

Legal Unity, Rights and Privileges

The Right of Consortium

Property and Succession Right

Sexual Intercourse

Enticement and Habouring

Loss of Right to Consortium

Contractual Relations between Spouses

Wife’s Authority to Pledge Husband’s Credit

Cohabitation

Torts

Husband and Wife in Criminal Law

Mutual Defence

Defence of Property

Citizenship

Marriage Celebrated Abroad

Customary Law Marriage

 

8. FAMILY PROPERTY

Family Property (Immovable and Movable)

Family Property under Native Law and Custom

Slaves of Domestics

Head of the Family

Right in the Immovable Property of the Family

Creation of Family Property

The Determination of Family Property

Legal Effect

The Position of Non-Natives

 

9. JURISDICTIOIN IN MARRIAGES

Jurisdiction in Statutory Marriages

Jurisdiction in Matrimonial Causes Matters

Domicile

Domicile of a Married Woman

Domicile of Choice

Jurisdiction Based on Domicile

Jurisdiction Based on Residence

Law to be Applied

Reconciliation

Jurisdiction in Customary Law Marriages

 

10. FORMAL VALIDITY AND PROCEDURAL DEFECTS IN STATUTORY MARRIAGE

Meaning of Procedural Defects

Types and Nature of Procedural Defects

(a) Defect as to Time

(b) Defect as to Place of Celebration of Marriage

(c) Defect as to Name

(d) Defect as to Registrar’s Certificate of Notice

(e) Defect as to Celebration

Legal Effects of Procedural Defects

Interpretation and Application of Procedural Defects.

 

11. NULLITY AND RECTIFICATION OF CUSTOMARY LAW MARRIAGE

Nullity and Rectification of Customary Law Marriage

Grounds on which a Customary Law Marriage is Void

  1. Lack of Consent

  2. Blood and Marital Relationship

  3. Failure to Pay Bride Price

  4. Marriage between Nigerian and Non-Nigerian

  5. Breach of Islamic Customary Law

  6. Incomplete or Inchoate Marriage

Grounds on which a Customary Law Marriage is Voidable

 

12. DISSOLUTION OF MARRIAGE

History of Divorce Law

Theories in Divorce Law

(a) Matrimonial Offence or Fault Theory

(b) Breakdown Theory

Judicial Separation

Grounds for Judicial Separation

Bars and Defenses to Petition

Effect of the Decree

Divorce and Judicial Separation

Discharge of Decree on Resumption of Co-habilitation

Petition for Judicial Separation

Dissolution of Marriage by Death

Dissolution of Marriage Under Customary Law

 

13. GROUNDS OF PETITION FOR DIVORCE

Willful and Persistent Refusal to Consummate the Marriage

Adultery and Intolerability

(a) Proof of Adultery

(b) Nature of Evidence

(c) The Birth of a Child

(d) Venereal Disease

(e) Cohabitation

(f) Intolerability

(g) Confession and Admission

Respondent’s Grave and Unbearable Conduct

(a) Rape, Sodomy or Bestiality

(b) Habitual Drunkenness or Intoxication

Willful and Persistent Refusal to Consummate

 Desertion

Living Apart for Two or Three Years

Failure to obey a Decree of Restitution of Conjugal Rights

Presumption of Respondent’s Death

Frequent Conviction and Leaving the Spouse without Support

Imprisonment

Attempted Murder and Assault

Habitual and Woeful Failure to Support

Insanity

Defacto Separation

Animus Deserendi

Lack of Just Cause

Separation and Respondents’ Consent to Dissolution

 

14. COURT PROCESS

Presentation of Divorce Petition

(a) The Two-Year Rule

(b) The Application for Leave to Petition

Court Processes required for Dissolution of Marriage & Nullity of Marriage

Petition for Decree of Dissolution of Marriage

(a) Introduction/Bio data of Parties

(b) Marriage Details

(c) Birth Records

(d) Domicile or Residence of Petitioner

(e) Cohabitation Record of Parties

(f) Record of Children

(g) Record of Previous Proceedings.

(h) Facts Relating to Ground for Divorce

(i) Denial of Complicity in Ground for Divorce.

(j) Arrangements for Children

Other Relevant Information

(a) Application for Ancillary Reliefs

(b) Application for Court’s Exercise of Discretion

(c) Other Matters

(d) Particulars of Orders Sought

(e) Date and Signature

Samples of Petitions

Filing of Processes and other Procedures

 

15. BARS TO GRANTING DIVORCE PETITIONS

Absolute Bars

(a) Condonation

(b) Connivance

(c) Collusion

Discretionary Bars

(a) Petitioner’s Adultery

(b) Petitioner’s Desertion

(c) Petitioner’s Conducing Conduct

 

16. ANCILLARY RELIEFS TO MATRIMONIAL SUITS

Types and Nature of Ancillary Reliefs

Persons Qualified for Grant of Ancillary Reliefs

The Relief of Maintenance

(a) Maintenance Pending Disposal of Proceedings

(b) Maintenance per se

(c) General Considerations in the Grant of Maintenance

(d) The Concept of Maintenance under Customary Law

Relief of Children Custody

(a) The Discretion of the Court

(b) The Interest of Children

Other Factors/Considerations in the Award of Custody

(a) Ages and Sex of the Children

(b) The Personal Wishes or Preferences of Children

(c) The Social, Religious, Moral and Educational Welfare of Children

(d) Equality of Parents/Conduct of the Parties to the Marriage

(e)Financial Status of Parties and Arrangements for General Care of Children

(f) Miscellaneous Factors

The Order for Custody

(a) Physical Custody

(b) Legal Custody

(c) Sole Custody

(d) Joint or Shared Custody

(e) Split Custody

(f) Temporary Parental Custody

(g) Third-Party Custody

Enforcement of Custody Orders

 

17. SETTLEMENT OF PROPERTY

Meaning and Aim of Settlement of Property

Parties to Settlement of Property

Nature of Property to be Settled

Types of Settlements

(a) Ante-nuptial or Post-nuptial Settlements

(b) Court Settlements

 

Rules of Settlement of Property

(a) Status of Pre-Nuptial and Post-Nuptial Property in Settlements

(b) Valuation of Property

(c) Mode of Division/Settlement of Property

Enforcement of Orders

 

18. TESTATE SUCCESSION

Sources of Wills Law in Nigeria

The Nature and Character of a Will

Types of and Capacity for Making Wills

(a) Regular Will

(b) Privileged Will

(c) Conditional Will

(d) Nuncupative Will

Who Can Make a Will?

Statutory Requirements of a Will

Revocation and Cancellation of Wills

(a) Subsequent Marriage

(b) Later (Superseding) Wills

(c) Intentional Revocation (Animus Revocandi)

(d) Destruction

Statutory Modifications to Wills-Making

 

19. INTESTATE SUCCESSION (ADMINISTRATION OF ESTATES)

Meaning of Intestacy

Statutes-based Administration of Estates

(a) Administration of Estates Law, 1959

(b) Succession Law Edict, 1987 of Anambra State

(c) Rule in Cole v. Cole

 

20. CUSTOMARY INTESTATE SUCCESSION

Igbo Intestate Succession

Yoruba Intestate Succession

Intestate Succession in other Parts of Nigeria