MAINTENANCE
A man has a legal duty to maintain and provide for his wife and
children, and his wife and children have a legal right to compel him to
maintain them. The man’s duty to maintain and provide for his wife and
children is usually not terminated by dissolution of the marriage. A man
has a duty to maintain his divorced wife usually until her death
(though the order could be made to last for a limited time depending on
the circumstances of the case) or until she remarries. The duty to
maintain his children terminates when they attain the age of twenty-one.
The law also recognises that men, in some cases, are also entitled to
maintenance. A man who feels his wife is financially buoyant or up to
the task may ask the court to order her to maintain him.
The court, in making an order for maintenance, will consider a lot of
factors such as the means of the parties, earning capacity of the
parties, standard of living of the parties, conduct of the parties
during the marriage and even the age of the parties.
Usually, the court would be very unwilling to make a maintenance order
in favour of a spouse who has sufficient means to maintain his/herself.
CUSTODY OF CHILDREN
Under some customary laws in Nigeria, the children of the marriage are
deemed to be the children of the man alone and so, when the marriage
comes to an end, the woman is deprived of the right to have custody of
the children. In some other customary law systems, the woman would only
have a right to custody of the children when she has returned the bride
price paid by the man. It should be noted that, irrespective of the type
of marriage contracted, both spouses have equal rights to contend for
the custody of the children of the marriage. Any custom which outrightly
deprives a spouse of such rights could be held to be invalid by a court
of law if such a custom is challenged.
An order for the dissolution of a marriage would not be made unless
satisfactory plans have been made for the care of the children of the
marriage.
Where the custody of the children of the marriage is contested by both
parties to the marriage, the court can make any order which it believes
would be in the best interest of the children. Some of such orders are:
1. An order granting full custody to one parent while granting full,
restricted, unrestricted or supervised access to the other parent. What
this means is that the child of the marriage would live with the parent
who was awarded full custody and that parent would make decisions
affecting the upbringing and education of the child while the other
parent would only be able to visit the child at scheduled times. Where
supervised access is ordered, then the parent who was granted access can
only visit or be around the child in the presence of the other parent
or some other authorised person. Supervised access is usually granted
when the suitability of a parent is questionable. When a parent is
granted unrestricted access, then that means he can visit the child
unsupervised. Access to the child could also include having the child at
weekends or during holidays. All of these would be dependent on the
order made by the court.
2. An order granting joint custody to the parents. Where the parents
have been able to convince the court that they both have the best
interest of the child in mind and there is no evidence before the court
disqualifying either party from being awarded custody, then the court
could make an order granting joint custody of the child to both parents.
In order to give effect to this order, the court would usually give one
parent the care and control of the child while the other parent would
be given the responsibility of the child’s maintenance and education.
The parent who has the care and control of the child has physical
control of the child and gets to make certain decisions in respect of
that child’s care, while the parent with the responsibility of
maintenance and education amongst other things, pays the child’s fees,
provides the resources for the care of the child and makes decisions
about the education of the child.
It is important to note that the courts are of the opinion that the
custody of the child is a divisible component. This means that the court
can deal with each constituent component of custody differently. Thus,
the court can award the religious upbringing of the child to one parent
(especially where the parents are of different religions), the education
to another, while the control and care of the child is awarded to
another. The order to be made by the court would be dependent on the
circumstances of each case.
In divorce proceedings, the law is concerned about the child. In
determining who would have custody of the child, the paramount
consideration of the court is usually the child. The court would
consider the interest and welfare of the child above any other factor.
In order to determine what would best protect and preserve the interest
and welfare of the child, the court would consider the following
factors: emotional attachment to a particular parent, the desirability
of siblings growing up together in the same home, the adequacy or
inadequacy of the facilities which would be made available to the child
for his or her emotional, educational, physical, moral, spiritual and
social development. The court would also be guided by the peculiarities
of each individual case.
Sometimes, it is usually the case that men seek custody of the child of
the marriage on the ground that they are more economically independent
than the women, and the women just give up the fight for custody of the
child since they are less economically independent; this should not be
the case. The courts have stated that great comfort (this means wealth
or greater financial security) is not the criterion for measuring the
welfare of a child. Where a parent can provide a home and the
necessities of life for a child, then such a parent would not be
deprived of custody unless that parent is guilty of a misconduct. This
is the importance of asking for maintenance. As earlier stated, a man
has a duty to maintain his child. So if the woman seeks to have custody
and lacks the resources to care for the child, then she should seek
custody as well as maintenance for herself and the child of the
marriage.
Custody is not usually granted to a parent to punish the other parent
whose conduct has led to the dissolution of the home. It is not decided
based on the right or wrong of a party’s conduct. As earlier stated, it
is determined by having recourse to what would best serve the interest
of the child. There have been instances where women have shied away from
seeking custody of the child of the marriage because of adultery or
some other reprehensible conduct of theirs. As much as adultery is
reprehensible, the courts have consistently held that adultery without
more does not make a person an unfit parent. It is important that,
during divorce proceedings, parents who desire to have custody of the
child should endeavour to be present in court, produce credible evidence
showing that they are good parents and, where necessary, testify to
their fitness as parents. The courts have stated that the presence in
court of a parent who wants to be awarded custody is imperative as it
affords the court an opportunity to judge his/her character. If there
exists any evidence of acts of either of the parents which impugns the
character of the parent in relation to the exercise of care, control and
supervision of the child, it should be presented to assist the court in
granting custody to only the fit parent.
The courts are usually more inclined to grant custody of children of
tender years to the mother. But this does not mean that the court would
not grant custody to the father in deserving cases.
Irrespective of whom custody has been granted to, a parent, family
member or anyone who has the best interest of the child at heart can
apply to the court to review a custody order if there arises any such
need.
It is only the court of law that has jurisdiction to dissolve a
statutory marriage. However, some other issues can be resolved by the
parties through mediation before commencing an action for dissolution of
the marriage or during the pendency of a petition for the dissolution
of the marriage. Issues such as the amount to be paid to a spouse for
the maintenance of the spouse and children when the marriage is
dissolved, custody and access to the children and settlement of
property, can be amicably resolved through negotiation and mediation.
When the terms are agreed upon, these terms can be submitted to the
court and made a consent judgment. A consent judgment means the terms of
settlement agreed upon by parties which the court gives accepts by
making it a judgment of the court thereby making it enforceable.
In Lagos state, the existence of the Multi-Door Court House is a system
that provides a platform for alternative dispute resolution making it
possible for litigants to reach an amicable agreement outside of the
court room.
Divorces can be nasty and having to fight dirty in public, especially
when children are involved, is a horrible experience. Mediation gives
parties the much needed privacy and atmosphere to amicably resolve
certain issues on their own terms, while still dissolving their union in
court. Children are spared the agony of having to be examined and
cross-examined in public by total strangers. They are also spared the
distress of having to lie to please one parent in the battle for
custody. They are spared the sorry sight of having their once happy
parents being painted as unfit and unsuitable parents. This preserves
the image of the parents in the child’s eyes and saves the integrity of
the family image. Parties are therefore encouraged to explore and
utilise the Lagos Multi-Door Court House system for peaceful and private
resolution of certain aspects of their matrimonial issues as this
preserves the integrity and dignity of the parties, and affords the
children of the marriage an opportunity to adjust and transition easily.
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