By M.O.Idam, Esq.

Statutory Marriage or Marriage under the Act (known in Nigerian parlance as ‘Court Marriage’), is principally regulated by the Marriage Act (MA) and Matrimonial Causes Act (MCA). However, other legislations like the Child Rights Act, Married Women Property Act, etc., may also apply, depending on the circumstance.

A spouse may petition the State High Court for the dissolution of his or her marriage on the ground that the marriage has broken down irretrievably, pursuant to any of the conditions specified in Section 15 of the MCA.

Worthy of note is that the High Court is jealously vested with the exclusive jurisdiction to hear and determine petitions for the dissolutions of statutory marriages. See S.2 (1) of the MCA. Interestingly, this law permits a petitioner to file petition for dissolusion of marriage in the High Court of any State in Nigeria, including the FCT, notwithstanding the State in which the marriage was contracted. See 2(1) of the MCA.

By this provision, a spouse is at liberty to approach any State High Court in Nigeria irrespective of where the marriage was contracted or where the partner lives, to have his/her marriage dissolved.

RIGHT TO CUSTODY OF THE CHILD/CHILDREN OF A MARRIAGE

Upon the dissolution of marriage between parties, the general rule is that both parties have equal responsibilities and rights over the child/children of the marriage, which includes, but is not limited to, the right to train, raise, influence and make decisions for and on behalf of the child/children of the marriage. See MRS. HELEN NWOSU V. HON. DR.CHIMA NWOSU (2012) 8 NWLR Pt 1301. However, the Court reserves the discretionary power to make pronouncement subject to section 1 of the Child Rights Act, considering the best interest of the child/children of the marriage.

The custody of the child/children is not bestowed automatically on any person, but will be determined based on the best interest of the child or children. Both parents have equal rights to the custody of their child/children. See NWOSU V. NWOSU (Supra). However, where the issue between parties borders on custody and not on dissolution, the High Court and the Magistrate Court are both clothed with equal jurisdiction to entertain same.

Under customary marriage, the custody of a child/children of the marriage is given to the father See *M. C. Onokah, Family Law* in Nigeria however, various provisions of the law render these customs invalid, particularly, if granting custody to the father will not be in the child’s best interest. See the case of FEBISOLA OKWUEZE V. PAUL OKWUEZE (1989) 3 NWLR pt 109, pg. 321 , under most systems of customary law in Nigeria, the father of a legitimate or legitimized child has absolute right to custody of the child. Though the superior right of the father is recognized, this right will not be enforced where it will be detrimental to the welfare of the child. The only proper manner in which custody of a child under customary law can be determined is by adducing evidence specifically to establish what is in the best interest and welfare of the child. A spouse who lacks basic moral values is usually not considered fit to have custody of a child of the marriage.

Similarly, under Islamic law, a wife only retains custody of a child when the child is a toddler, or less than the age of seven (7) for a male child and nine(9) for a female child, after which custody goes to the father but the welfare of the children will be considered in awarding custody. In the case of BILYAMIN BISHIR V. SUWAIBA MOHAMMAD (KTS/SCA/KT/39/2019), the Sharia Court of Appeal held that the first thing to be considered in child custody matters is the child’s best interest, health, proper training, and the child’s education. See also Section 1 of the Child Rights Act.

Any determination of a child’s custody must be done in consideration of his welfare and must be in the child’s best interest. Interest of the parents or their desire is not a factor.

Any discrimination in the granting of custody that does not align with the welfare and best interest of the child is invalid, unlawful and can be challenged in Court. Different States’ laws are all in tandem with this provision. See Section 28 of the Customary Law of Lagos State, 2011 and Section 16 (1) of the Customary Law of Enugu State.

M. O. Idam, Esq.,
#AskAmeboLawyer
[email protected]