Project Abstract

This study was on dissolution of marriage and child custody under Nigeria law. Two objectives were raised which included To ascertain the whether court have influence in the custody of the child after dissolution of marriage and to find out the law that govern the child after marriage dissolution. The study adopted a survey research design and conveniently enrolled 80 participants in the study. A total of 77 responses were received and validated from the enrolled participants where all respondents were drawn from staffs of human right commission. Hypothesis was tested using Chi-Square statistical tool (SPSS).

Project Overview

Introduction

1.1Background of the study

The growth and development of contemporary society in Nigeria and present social, political and economic pains (particularly in an economy in recession), being inflicted on per second dosage on most Nigerians have had grave or adverse effect on the life span and sustenance of marriages in general and customary law marriages in particular. The consequential hardship and challenges existing in many marriages today violently push the edges of the enclosing envelope of survival of most marriages, leading to greater number of cases of separations or outright divorce. Invariably, issues relating to the dissolution of marriage generally, and the ancillary reliefs of custody and maintenance of the children (if any) of such failed marriages have once again been pushed to the front burner of legal discourse. This is particularly true of the dissolution regime of marriages contracted under customary law, features of which are not as rigid and formal as statutory marriages. Nigeria, being a country of diverse people and culture, presents a deluge of customs, usages and traditions governing marriage, divorce and custody relative to each community. Within this diversity, unity is evident. So that there can be distilled some rules of customary law of marriage in the areas under consideration that are common to or similar in most of these communities (https://edojudiciary.gov.ng)

There is no doubt that the rules governing customary marriage vary from place to place, if one may say so from time to time, like all other rules of customary law, anywhere, but one can hardly subscribe to the suggestion that in spite of that, we cannot find basic requirements of a valid customary marriage. To that extent, we may say that what we have is a customary ‘Law’ of marriage which varies from place to place according to the customs of the people. These diverse customary laws of marriage prescribe basic and obligatory rules governing the creation of valid customary marriages, dissolution and custody of children etc. The fulcrum of this paper therefore, is to critically examine the law relating to customary law marriages from the perspective of dissolution, custody of children, maintenance and other issues relating thereto. (Anyafulude, 2012)

One of the most contentious consequential or ancillary aspects of dissolution of customary law marriages like other forms of marriages is the issue of the custody of children. Under the Customary Courts Law of the various states where customary courts have been established, provisions have made relating to custody of children in the event of dissolution of customary law marriages by customary courts. For example, the Customary courts law 1984 of defunct Bendel State (as applicable to Edo State), jurisdiction of Customary Courts in Edo State in the area of guardianship and custody of children under customary law is unlimited.

Generally, in most systems of customary law the father has absolute right to custody of the children of the marriage. Upon his death, the male head of the father’s family is vested with the right. Although the day to day care of the children may be the responsibility of the mother.

Where however, the children are still of tender age in need of motherly care and affection, the children are kept in the custody of their mother until they can be properly and safely separated from their mother and returned to their father. There has been a host of judicial decisions by courts in Nigeria interpreting this aspect of customary. Most of them have generally upheld this principle. Although, it must be said that the strict application of this custom is fast waning. Nowadays, different factors are now taken into consideration in determining the issue of custody of the children of a customary marriage. Therefore decisions such as that in the case of Abiakam v. Anuawu, where the court upheld the primary of the absolute right of a father to custody of children until they attain the age of majority and that of the Delta State Customary Court of Appeal in an unreported case of Mbanoso vMbanaso in respect of custody where the court stated thus:

“We have observed earlier that in most systems of customary law in Nigeria, the father of a legitimate child or legitimated child have absolute right to custody of the child and most courts have taken judicial notice of this; so it need not be specifically proved.”

Has been modified and watered down by the Nigerian Supreme Court in the case of Okwueze v. Okwueze. In this case, the Supreme Court held that whilst it recognizes the superior rights of the father, this right will not be enforced where it will be detrimental to the welfare of the children. However, there has been statutory intervention in this area in cases of judicial dissolution of marriage (https://dnllegalandstyle.com)

Statement of the problem

Custody of a child is not a customary issue, even where the child is born under a customary marriage, rather it is a Child Rights issue and only the courts have the final say on such. Traditional (customary) marriages are lawful and valid in Nigeria. No federal or state law regulates customary marriage. Based on the background of the study the researcher wants to investigate the dissolution of marriage and child custody under Nigeria law

Objective of the study

The objectives of the study are;

1. To ascertain the whether court have influence in the custody of the child after dissolution of marriage
2. To find out the law that govern the child after marriage dissolution

Research hypotheses

For the successful completion of the study, the following research hypotheses were formulated by the researcher;

H1:   court have no influence on the custody of the child after dissolution of marriage.

H0:   court have influence on the custody of the child after dissolution of marriage.

H2: there is no law that govern the child after marriage dissolution

H0: there is law that govern the child after marriage dissolution

Significance of the study

sThe study will be very significant to students, lecturers and parents. The study will give a clear insight on the dissolution of marriage and child custody under Nigeria law. The study will also serve as a reference to other researcher that will embark on the related topic

Scope and limitation of the study

The scope of the study covers dissolution of marriage and child custody under Nigeria law

The researcher encounters some constraints which limit the scope of the study namely:

The research material available to the researcher is insufficient, thereby limiting the study

The time frame allocated to the study does not enhance wider coverage as the researcher has to combine other academic activities and examinations with the study.