Marriage Disputes in Nigeria: Alternative Dispute Resolution Mechanisms as a Means of Resolution

 ABSTRACT

The issue of marriage disputes is without doubt one worthy of serious and utmost attention. In Nigeria, the primary and major method of resolving marriage disputes is via litigation through a petition to the court as stated in the Matrimonial Causes Act 1970. Although the Act tends to provide for another means of resolution asides litigation, it seems to be a shadow of the actual law. This article is a discourse on the current law of resolving matrimonial disputes, pointing out the inadequacies and suggest new mechanisms for resolving marriage disputes. The article recommends that Alternative Dispute Resolution Mechanisms should be utilized in resolving marriage disputes. The doctrinal research methodology was utilized.

Introduction

The legal complexity of matrimonial disputes requires a variety of remedies outside the scope of core litigation. The process of divorce according to the Matrimonial Causes Act[1] is inadequate and falls short of precision because the Courts and its laws are fixated primarily on objectives of the legal process in deciding issues. The Courts are respectfully inept, and perhaps indifferent at dealing with the spouses’ personal (in other words emotional) conflict.[2] For instance, the legal system does not openly respond to the emotions experienced by both divorcing parties. These emotions range from disappointment and anxiety to depression, sadness, grief, and anger- sometimes to the point of rage.[3]

Thus, Sander[4] stated that, ‘if one were to set out to design a system poorly adopted to the relation of family conflict or for safeguarding the children one would, with little luck invent an adversarial system…’. Critical to the design of the adversarial system, particularly, in matrimonial dispute procedures, the divorcing couple often misunderstands the legal system’s assessment of and approach to their problems. Although, the adversarial proceedings avail spouses of the limited advantage of voicing their anger at one another, it does not solve or take care of their emotional predicament.[5] This article has its main aim to be recommending Alternative Dispute Resolution Mechanisms to marriage disputes.

An Examination of the Concept of Marriage

In the popular case of Hyde v Hyde,[6] marriage was defined by Lord Penzance as the voluntary union for life of one man and one woman to the exclusion of all others. Lord Westbury in Shaw v Gould[7] held that ‘marriage is the very foundation of civil society, and no part of the laws and institutions of a country can be of more vital importance to its subject than those which regulate the manner and conditions of forming, and if necessary of dissolving, the marriage contract’. As a social institution, marriage is founded on, and governed by the social and religious norms of society.[8] Consequently, the sanctity of marriage is a well-accepted principle in the world community.[9] It is often described as a union sanctified by God and the term “sacred” can be used to describe it.[10]

The expectation of the society, during the existence of the marriage, is that the spouses will each collaborate to sustain their union, thus the society defines marriage from the emotional wellbeing and material development of the family unit, which the adversarial system of the law most likely does not give cognizance to.[11]  From the legal perspective, the concept of marriage can be likened to a contract as a contract is mainly concerned with relations between persons, who the law will recognize and enforce where one of the parties fails to perform the part of the bargain,[12] however, marriage is a “special and different type of contract”.

Undeniably, the law, through the instrumentality of statutes[13] and judicial rulings, shapes and defines the nature or contents of the essential matrimonial duties that apply to marriages, and ordinarily provides for the governing of marital structure. The universality of marriage as an institution, which is recognized and respected across the world is a concept subject to varying definitions.[14]

From the traditional and religious purview, the sanctity of marriage is upheld, thus, divorce and separation or any marriage disputes are mostly frowned at.[15] For instance, the Christians believe that the two parties to a marriage become one and, ‘no man should separate what God has joined together’;[16] this reflects the reverence attached to marriage as an institution. According to the Holy Bible, a couple to a marriage is not permitted to divorce except for very stringent reasons such as immorality.[17]

Also, in the traditional setting of pre-colonial era, prior to the emergence of the Court system, disputes are resolved in an amicable manner because the cordial relationship between disputants was paramount to keeping the society together,[18] such dispute is settled by traditional negotiation, mediation or conciliation within the clan before it is referred to the King to make a binding declaration on such matter which then becomes a precedent. Even at that, the primary underlining concept behind such resolution is peace and tranquility so that disputes do not go endlessly without resolution.[19]

Nigeria, being a mixed fabric of both religious and traditional disposition, at earlier era, strictly frowned at divorce, however, in recent times the rate of divorce is on the increase and has become geometrical in calculation due to the negative influence of globalization and the infiltration of westernized culture[20] which has made the idea of litigation generally unsuitable for marriage disputes.

The Process of Litigation of Marriage Disputes

Litigation is adversarial in nature and the proceedings in the Nigerian Courts span for a very long time which does not help the emotions of the parties.[21] Also, there is no guarantee of a cordial relationship between the parties after the proceeding, following the popular saying of the Yoruba tribe of Nigeria that ‘eyan meeji o kin lo sile ejo ki won pada di ore’ which means ‘two people do not go to Court and remain friends’. The outcome of the process mostly results to further acrimony.[22]

In general, the law may seem to be reasonably sufficient because asides taking care of the dissolution of marriage, it takes care of ancillary situations such as child support/maintenance and spousal maintenance. It also considers a possible option for reconciliation which is laudable although it is submitted that the provisions of reconciliation to be reasonable as the provisions have even become more of a shadow to litigation. In considering the practicality of the provisions, the litigation procedure on the one hand and that of reconciliation on the other are considered.

The basic problem of litigation is that the proceedings are always emotionally upsetting to parties especially when children are involved. During proceedings, parties are prompted to use foul and abusive language in proving their cases/facts, especially where adultery is alleged.[23] By the time the decree is eventually granted, the parties are full of bitterness towards each other. This is not good for both mental and physical health. It also counters the aim of the English report Commission which states that,

The object of a good divorce law, should be to buttress, rather than to undermine, the stability of the marriage; and when unavoidably, a marriage has broken down irretrievably, ‘’the empty legal shell of the marriage should be buried with the decency and dignity’’ and in a way which will harmonize relationship between the parties and their children.[24]

Consequent upon the unhealthy emotions created by the adversarial nature of litigation, the parties become completely estranged to each other. By the time the final decision of dissolution is made, the ability to communicate has already disintegrated as this is seen in the hostile manner, they treat each other.

Litigation does not foster a good relationship during and after proceeding. It does not appear to pay much attention to the social relationship of the parties.[25] Where children are involved, the battle witnessed in courtroom destroys any chance of a constructive on-going parental relationship in the future. Moreover, litigation is tantamount to parties washing their dirty linen in public which should not be so.

The authors believe that marriage, both the good and the bad aspects of it should be accorded respect, honour and confidentiality, but where all and sundry sit to hear the details of a marriage at its dissolution, the confidentiality and respect it deserves is thrown away.

A divorce seems like a stigma and as Azinge puts it in his publication, ‘Settlement of Disputes: An Appraisal of Alternatives to Adjudication in Matrimonial, Chieftaincy and Land Disputes,’[26] divorce proceeding is a permanent source of embarrassment to the parties, their children, family and friends. Litigation is an involuntary active player in this embarrassment.

Litigation is costly.[27] It involves high monetary and non-monetary cost. Monetary cost in terms of lawyer’s fees, court fees, hearing fees etc., is expensive. In fact, the involuntary party (the defendant in the petition) is forced to seek a lawyer and he/she will pay his lawyer. The non-monetary cost is in terms of giving up work to meet up with court hearings. The schedules of parties are interrupted because they have no authority to fix dates of hearings themselves.

Lastly, litigation does not change nor put an end to the initial wrongs/issues that led to the divorce between parties; the wrongs of the past are unchangeable. Talking about the past does not restore it. The proceeding simply reinforces the ugly past happenings. Mere beating around the past, as it is done in litigation, does not necessarily bring an end to what leads to the urge/need to divorce. The ‘no fault principle’ is at the end not adhered to, as still with this position one party is branded as guilty, which often causes bitterness and distress between the parties and their children alike.

Application of Alternative Dispute Resolution Mechanisms to   Marriage Disputes

Disputes have recently been settled through a recourse to Alternative Dispute Resolution.[28] The fact is not in doubt that Alternative Dispute Resolution Mechanisms is fast becoming the best method, not only as a complementary or alternative mechanism to litigation but also as the best strategic method of resolving certain private disputes of which matrimonial causes is first.[29] According to popular and some professional perceptions, adversarial adjudication makes the process of divorce excessively expensive, painstaking, and difficult.[30]

ADR mechanisms have been thriving well and have been drafted as an effective tool in areas where litigation have been unsuccessful.[31] There are many reasons why ADR mechanisms[32] should be used to resolve marriage disputes as employing these alternatives provide a decent burial to an already “dead marriage”. It is a way of ensuring that emotions are properly taken care of following the fact that parties discuss their issues in a friendly atmosphere rather than employing an adversarial approach as witnessed in litigation.[33] It is also a way of ensuring that enmity is not created between the parties as it is important that there is cordial relationship between former parties to a marriage because marriage affects the larger social interests and transcends purely individual concerns. Marriage influences both personal rights and social policy;[34] it is indeed more than a ‘mere’ contract and its effects have a form of permanence.

Although, the expediency of ADR will be elaborated by this research, it is understandable that ADR mechanisms in resolving marriage disputes has its own shortcomings and limitations as there are challenges facing the application of ADR mechanisms generally and the shortcomings may jeopardize their effectiveness or bestride the reasons behind their inception. There is the challenge of inadequacy in the number of skilled personnel and training centers or facilities.

It is believed that the best way to resolve conflict and promote peace in the world is to begin from the family. Most of the societal problem today emanates from family separation resulting from unprofitable matrimonial litigations whereby children are displaced and lack the necessary parental guard and guide to be a better asset to the society.[35] Litigation in matrimonial causes has therefore caused both the family and the society a lot of havoc.[36]

Alternative Dispute Resolution Mechanisms Applicable to Marriage  Disputes

Following the fact that the crux of this article is to highlight ADR mechanisms that can be used to resolve marriage disputes, this section elucidates on various Alternative Dispute Resolution Mechanisms that can be used to resolve marriage disputes.

The ADR Mechanisms to be considered are:

  • Collaborative Divorce
  • Arbitration
  • Mediation

Collaborative Divorce

Collaborative divorce (also called collaborative law, collaborative practice and collaborative family law) is a voluntary and facilitative family law process, enabling couples who have decided to end their marriage, to work with their lawyers and other family professionals, in order to achieve a settlement that best meets the specific needs of both parties and their children, thus, avoiding the uncertain outcome of the court.[37] This process is initiated when couples voluntarily sign a contract (Participation Agreement) binding each other to the process and disqualifying their lawyers to represent either of them in any future family related litigation.

This alternative was created in 1990 by a Minnesota Family Lawyer, Stuart Webb,[38] who saw that traditional litigation was not always helpful to parties and their families and was often damaging. Since 1990, the collaborative law movement has spread rapidly to most of the United States, Europe, Canada, and Australia. It was launched in England in 2003.[39] ADR methods, collaborative law inclusive, have been incorporated in Texas Family Code[40]  and the code provides that parties to dissolution of marriage may agree with their attorneys in an agreement, to conduct the dissolution under collaborative law procedures without court intervention.

Arbitration

Arbitration is a process of dispute resolution in which a neutral third party (arbitrator) renders a decision after hearing at which both parties have an opportunity to be heard. Where arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision.[41] In Collins v. Collins,[42]the Stroud’s judicial dictionary defines arbitration as a reference to the decision of one or more persons, either with or without an umpire, of a matter in difference between the parties.[43]

Divorce arbitration can be described as a ‘mini-trial’ or an informal litigation wherein divorcing couples select a neutral third party, called an arbitrator, with family law experience to hear their case and gives a final decision (award) having heard from both sides. The arbitrator acts like a judge because he gives a final decision at the end of the process. Unlike a judge, he has a great deal of leniency because the couples can have a say in what the rulings will be.

The decision of a divorce arbitrator may be either binding or non-binding, depending on what the parties choose. If the couples elect that the decision be binding, that decision will then be made into a formal judgment. If the parties elect that that the decision be non-binding or advisory, the parties can either accept or reject the decision of the arbitrator. If they accept the decision, an agreement to that effect will be entered and decision will be made into a formal judgment. If either party or both parties later reject the decision on grounds that the arbitrator is partial and that the decision is made wrongly, an appeal can be filed in the court of law, but if the result is the same as the first decision or is more favorable to the other spouse, the spouse who appeals may be ordered to pay the other’s costs as stated in Mason v Mason.[44]

Mediation

Divorce or Family Mediation is a non-adversarial, facilitative, and co-operative decision-making process, where a qualified and impartial third party helps couples resolve disputes in their marriage especially those relating to divorce or separation.

Once the parties, with the help of their mediator, identify the issues, they then try to resolve those disputes between themselves. The mediator does not make decisions for them but attempts to get them make decisions on their own. The most common aspects of mediators’ codes of conduct include:

  • A commitment to inform parties as to the process of mediation;
  • A commitment to urge the parties to talk to each other;
  • A neutral stance towards the parties;
  • A concern for the psychological and physical well-being of the parties;
  • Conduct of the mediation in an impartial manner

Conclusion and Recommendations

The importance and sanctity of marriage cannot be overemphasized, however, due to the recent happenings and the current toll of marriages, divorce has become inevitable. Putting an end to a marriage comes with a lot emotional attachment and the adversarial system is not suitable. It is especially important that there is a process which is easier, faster and there is utmost privacy.

The use of these alternatives/ADR methods has advantages over litigation. The advantages are; low cost, time saving, good emotional health of parties and their children, smooth future relationship, confidentiality, and the use of experts. For the process of using alternatives to be effective, it is important for there to be a proper framework and the alternatives should be statutorily recognized.

About the Author(s)

Iseoluwa Aina LL.M., B.L., LL.B. [email protected], Department of Private and Business Law, Afe Babalola University, Ado-Ekiti, Ekiti State.

 Oluwadamilola Oniyire is an Associate Member of the Nigerian Institute of Chartered Arbitrators, [email protected], College of Law, Afe Babalola University, Ado-Ekiti, Ekiti State.

References

[1] Matrimonial Causes Act, Cap M7, LFN 2004.

[2] T. Carbonneau, ‘A Consideration of Alternatives to Divorce Litigation’ [1986].6 (4) (2) U.M.L Review Journal, 1119.

[3] D. Gold, Divorce Mediation: A New Solution to Old Problems [1981] (16) (4) Akron Law Review, 665.

[4] F. Sander, Alternative means of Dispute Resolution (1982) Keynote at the America Bar Association National conference. 22.

[5] J. Murphy, ‘Revitalising the Adversary System in Family Law’ [2010] (78) University of Cincinnati Law Review; 891

[6] (1860) L.R. 1PD 130.

[7] (1868) L.R. 3 H.L., 55, 82.

[8] A. James, ‘Marital Status and the Risk of Suicide’ [2012] (19)(2) American Journal of Public Health; 80.

[9] E. Nwogogwu, Family Law in Nigeria (Heinemann Educational Books (Nigeria)Plc 1990) 104.

[10] P. Walcot, ‘On Widows and their Reputation in Antiquity’, [1991] (66) (1) Symbolae Osloenses; 5-26.

[11] T. Carbonneau, ‘A Consideration of Alternatives to Divorce Litigation’ [1986] (4) (2) U.M.L Review Journal, 1124.

[12] O. Yerokun, Modern Law of Contract (Nigerian Revenue Projects Publications 2004), 204.

[13] Matrimonial Causes Act, 1970, Cap. M7 LFN 2004. Infant Law 1958, Western Region Laws.

[14] A. James, ‘Marital Status and the Risk of Suicide’ [2012] (19)(2) American Journal of Public Health; 79.

[15] W. John, Trent: What Happened at the Council (Harvard University Press), 225.

[16] Matthew 19:6 of the Holy Bible (King James Version, Red Letter Edition); 905.

[17] Matthew 19:9 of the Holy Bible (King James Version, Red Letter Edition); 905 states that whoever divorces his wife, except for sexual immorality, and marries another commits adultery.

[18] J. Ogaji, The Viability of Applying Alternative Dispute Resolution Processes in the Niger-Delta Conflict http://wrap.warwick.ac.uk/60366/1/WRAP_THESIS_Ogaji_2013.pdf> accessed 16 January 2020.

[19]O. Akanle, ‘Negotiation Dynamics and the Avoidance of Litigation in Legal Practice’ paper delivered at the Centre for African Law and Development Studies, Lagos 1995.

[20] U. Yakubu, ‘Deciphering the High Rate of Divorce in Nigeria’ Premium Times Nigeria (Nigeria, 1 March 2019) <https://opinion.premiumtimesng.com/2019/03/01> accessed 25 November 2019.

[21] E. Akpata, The Nigerian Arbitration Law Focus (West African Book Publishers 1997); 124.

[22] T. Carbonneau, ‘A Consideration of Alternatives to Divorce Litigation’ (1986) (4) (2) U.M.L Review Journal, 1119.

[23] Ibid.

[24] Law Commission.’ Reform of the Grounds of Divorce: The Field of Choice (Report by the Law Commission on a Reference under section 3(1(e) of the Law Commission Act 1965’  < https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/LC.-006-REFORM-OF-THE-GROUNDS-OF-DIVORCE-THE-FIELD-OF-CHOICE-REPORT-ON-A-REFERENCE-UNDER-SECTION-3le-OF-THE-LAW-COMMISSIONS-ACT-1965.pdf> accessed 16 February, 2020.

[25]  H. Ijaiya ‘Alternative to Adjudication in Settlement of Matrimonial Disputes’ [2004] (1) (5) UDUS Law Journal, 80.

[26]  Azinge, ‘Settlement of Disputes: An Appraisal of Alternatives to Adjudication in Matrimonial, Chieftaincy and Land Disputes’ May- June [1993] (4) (3) A Journal of Contemporary Legal Problem, 16.

[28] Hereinafter referred to as ADR.

[29] K. Wilensky, ‘Alternative Dispute Resolution in Matrimonial Cases’ [1995] New York Law Journal; 21.

[30] T. Carbonneau, ‘A Consideration of Alternatives to Divorce Litigation’ (1986) (4) (2) U.M.L Review Journal, 1119.

[31] J. Sternlight, ‘Is Alternative Dispute Resolution Consistent with the Rule of Law?: Lessons from Abroad’ [2007] (56)(2) DePaul Law Review <https://via.library.depaul.edu/law-review/vol56/iss2/15> accessed 16 January 2020.

[32] J. Folberg and A. Milne and P. Salem, Divorce and Family Mediation: Models. Techniques, and Application. (Gullford Publication 2004), 231.

[33] K. Jayachandra, Alternative Dispute Resolution: What it is and How it Works (Universal Law Publishing Co., New Delhi 1997), 79.

[34] P. Fagam, ‘Why Religion Matters: The Impact of Religious Practice on Social Stability’ [1996]  <https://www.heritage.org/civil-society/report/why-religion-matters-the-impact-religious-practice-social-stability> accessed 19 January 2020.

[35] S. McLanahan and G. Sandefur, Growing Up with a Single Parent: What Hurts? What Helps? (Harvard University Press 1994), 151.

[36] A. Ogundayisi Ll.B (Hons), B.L., Legal Practitioner, Arbitrator and Consultant, Abuja, ‘Settlement of Matrimonial Causes through ADR Mechanisms: The Best Alternative to Litigation’.

[37] R. Ousky and S. Webb, ‘The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids Without Going to court’ (Hudson Street Press 2007), 24.

[38] ‘Collaborative Law History’, <http://www.collaborativedivorce.net/history-of-collaborative-divorce/ >accessed on 13 July, 2020.

[39]  ‘Collaborative Practice in England’,<https://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups> accessed on 16 February, 2020.

[40] Texas Family Code, 2005 Chapter 6 Subchapter G § 6.603.

[41] B. Garner, Blacks’s Law Dictionary (6th Edition West Publishing Co.1979), 107.

[42] 28 L.J. Ch. 186.

[43] Harpers Law Dictionary 3rd Edition 1990. Vol. 1p.180

[44] [2008] No 14-07-00991-CV (Tex. App.-Houston [14th Dist.])

Author: ABUAD Law Review

The ABUAD Law Review (ALR), is a Journal published by the Afe Babalola University Law Students’ Society. It aim is to contribute to law and policy reform, not just in Nigeria, but the world at large by fostering rapid dissemination of preliminary research results by students, legal practitioners, teaching and research scholars.

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