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The study is an appraisal of matrimonial disintegration, issues and prospect. Nigeria enacted the Matrimonial Causes Act in 1970 to regulate the dissolution of statutory marriage. But this limitation to statutory marriage only entails shortcomings in respect of the other marriage systems that are also found in Nigeria: customary and Islamic marriage. All three systems, based on very different traditions, are, in principle, largely incompatible. This becomes particularly apparent when a marriage between the same persons contracted both under customary and statutory law is to be divorced. The requirements for customary and statutory divorce are not congruous in the different concepts of the (potentially) polygamous, customary (and Islamic) marriage and of the monogamous, statutory marriage. There are no provisions in the Matrimonial Causes Act considering obvious conflict situations. Reform has been frequently suggested but has not been implemented yet. The study tries at first to analyse the main aspects of customary, Islamic and statutory marriage and, especially, divorce, for in the case of the dissolution of marriage the distinguishing elements become most apparent. Then a proposal of an integrating divorce law will be presented which takes account of central features of the present marriage systems. It will be shown that many essential elements of these systems can be retained and combined to some extent in a unifying law. The proposal will frequently refer to the Tanzanian Law of Marriage Act 1971 which constitutes a fairly convincing attempt to unify different marriage systems.
CHAPTER 1- INTRODUCTION
1.1 BACKGROUND OF THE STUDY
The family is a fundamental social institution occurring in all societies, although its particular forms differ substantially from place to place. Stark (1987) identifies four primary functions of the family to include the following: sexual relationships, economic cooperation among members, reproduction and, the educational function - socialization of children. Again, the family is defined as the basic unit of the society. In other words, the family provides the bricks for the building of the society. The society therefore is an aggregate of the families . At any given time in human history, a family comes into existence each time a marriage is successfully contracted. This claim is corroborated from the biblical account of God's creation of Adam and Eve whom He accommodated in the 'Garden of Eden' and charged with the responsibility of procreating to fill the earth. Again, St. Paul in the Holy Bible says that for the reason of marriage 'a man will leave his parents and cling unto his wife and they both will become one -husband and wife1 Marriage is a covenant relationship between male and female spouses. The covenant nature of marriage provides a strong foundation and secure framework for spouses' commitment to each other. Covenant defines the marital responsibilities - of husband and wife toward nurturing and protecting their marriage. The couple is expected by their covenant to work hard to reach the level of relationship which protects the marriage from both internal and external negative forces (Zhekwo, 2009). With the arrival of children, the family keeps expanding. This is true within the African context where marriage is seen basically as a process of procreation. A good marriage guarantees a peaceful and joyful atmosphere in the home, which is most suitable for bringing up healthy and happy children. Research has shown that children who grow up in such environments are more likely to excel in school and in all other aspects of life including their own marital life (Okon, 2010).Experiences over the years have shown that at times a once blissful marital union turns sour. But before the table turned, the couples believed they were soul-mates as indicated in the way they worked together, walking hand-in-hand, exchanging pleasantries. Each partner then was a true friend, a confidant with good sense of humour ever willing to offer a helping hand to the other. However, marital instability has become a thing of concern in this contemporary society and this is associated with separation, divorce, and widowhood. Separation and divorce are social phenomena created by either husband or the wife or both, but widowhood is beyond the control of human being, it is related to death and thus universal (Amina 2008). Meanwhile, separation may be in two categories: physical Separation i.e. when the husband and the wife reside separately without resolving their marital tie; mental separation i.e. when the couple decides to live together in the same household but without having biological and psychological relations.It is imperative to note that when marriage is dissolved in the court of law, it is called divorce, but when it is dissolved by death is called widowhood (Amina,2008). Meanwhile, the term marital instability is used to refer to the process whereby marriages breakdown through separation, desertion or divorce (Lesmin &Sarah, 2008)
1.2 STATEMENT OF THE PROBLEM
In Nigeria the law of marriage and divorce is characterized by a distinctive legal pluralism. One finds statutory law, based on English law, and largely taken over from colonial times with few important changes; and customary law, consisting of a great number of different local customary laws of the various ethnic communities in Nigeria. In the North, Islamic law is mainly applied, which constitutes, in theory, a separate body of law, but in practice its rules are heavily influenced by the respective customary laws. Consequently, the border between these two systems is often blurred. However, the different nature of Islamic law1 justifies a separate discussion on Islamic marriage and particularly divorce in a special section.2 All of these marriage laws embody to a great extent different traditional and religious values that are scarcely compatible. Conflicts between them frequently arise, especially in the case of divorce. Customary law is still the primary source of family law, for most Nigerians contract marriages only under their respective customary laws, but rarely performs solely a statutory marriage. The (extended) families of the spouses would hardly recognize a marriage without any traditional foundation as a valid marital union. Marriages under both laws, however, are common.3 When it comes to a divorce; problems emerge, because the requirements for the dissolution of marriage are different under customary and statutory law. The same may apply when Islamic law is involved, but combinations between Islamic and statutory marriage are rare and conflicts between indigenous customary and Islamic law are unlikely. In addition, it has been repeatedly argued that the present statutes on marriage and divorce which apply to monogamous marriages make this kind of marriage superior to the (potentially) polygamous, customary marriages. Consequently proposal and Prospect exist for an integration of the inconsistent marriage systems. One of the earliest was Dr Akinola Aguda, then state legal draftsman, who said in 1965 (Aguda 1971:87): (We are trying to build a Nigerian nation . It is our duty to preserve our culture, and if a particular custom is on[c]e unacceptable to the generality of the people it is the duty of the state to alter it.) Reformation of our marriage laws now is imperative. His words have remained valid. In the following thirty years various suggestions have been made and some of them refer to the Tanzanian attempt of unification in the Law of Marriage Act 1971 as an acceptable model. The problem which confront the study is to appraise marriage disintegration ,issue and prospects
1.3 OBJECTIVE OF THE STUDY
The main objective of the study is to investigate Matrimomial disintegration issues and prospect. While the specific objectives include
1 To determine the nature of Matrimomial disintegration
2 To determine the causes and effect of Matrimomial disintegration
3 To determine the deficiency and Prospect of the Matrimomial disintegration LAW
1.4 RESEARCH QUESTIONS
What is the nature of Matrimomial disintegration?
What is the causes and effect of Matrimomial disintegration?
4 What is the deficiency and Prospect of the Matrimomial disintegration LAW?
1.5 SIGNIFICANCE OF THE STUDY
The study shall indentify the problem which exist in the Nigerian matrimonial disintegration law and proffer proposal and prospect for its resolution by showing that an integration of the diverse marriage laws is possible by combining central features of the present laws.
1.6 SCOPE OF THE STUDY
The study focuses on the appraisal of the Matrimomial disintegration issues and prospect.
1.7 LIMITATION OF THE STUDY
The study was confronted by logistics and geographical constraints
1.8 DEFINITION OF TERMS
MARITAL INSTABILITY DEFINED
Marital instability is associated with separation, divorce and widowhood. Separation and divorce are social phenomena which are allowed or created by the husband or the wife or of both. Meanwhile, widowhood is beyond the control of human being because it is related to death.
Marriage is a covenant relationship between male and female spouses. At any given time in human history, a family comes into existence each time a marriage is successfully contracted.. The covenant nature of marriage provides a strong foundation and secure framework for spouses' commitment to each other. Covenant defines the marital responsibilities - of husband and wife toward nurturing and protecting their marriage. The couple is expected by their covenant to work hard to reach the level of relationship which protects the marriage from both internal and external negative forces
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