ANALYSIS: When Husband and Wife can no longer live under same roof

Kennett and Clara knew that their marriage was plunging but they were reluctant to go their separate ways due to fear of societal condemnation and the rigour of securing divorce from a high court.

Their union became toxic two years ago when Kenneth began to suspect that Clara was cheating on him. This resulted in frequent conflicts that often degenerate to fights. Kenneth also lost respect and submission from Clara.

Little did they know that a recent fight at night over late return by Clara will end her life.

As usual, they started with verbal attacks and then went into physical fight during which Clara hit her husband hard on the private part and he strangled her to death.

Many couples like Kenneth and Clara are stuck in soured, toxic and abusive marriages.

They are reluctant to leave the union for several reasons including their children’s upbringing, protecting their reputation, rigours of securing divorce, and religious beliefs.

Critics say that all the reasons are worthy of consideration but do not worthy dying for.

“ As long as a marriage hasn’t become abusive, those reasons and more should be considered for protecting the marriage.

“However, the moment violence enters into a relationship, the only thing to be considered is the safety of the lives involved,” a marriage counsellor, Mrs Obiageli Okoro, argues.

She also argues that although it is the duty of high courts to dissolve marriages contracted under the Marriage Causes Act, couples in abusive marriages can separate from each other to avert tragedies.

Okoro warns that it is dangerous for a couple to still live together waiting for divorce when they can no longer stay without fighting.

Mr Ogedi Ogu, Country Director of Advocacy for Justice and Accountability is convinced that although high courts reserve jurisdiction to dissolve registered marriages, an embattled couple is at liberty to seek “first aid” in the form of judicial separation.

According to him, no law compels a spouse to die in an abusive marriage.

“For every marriage that has turned toxic, it is safe for the parties to stay slightly apart for their individual safety.

“In as much as it is the law that only a court of law can grant dissolution of marriage contracted under the Marriage Act, it is not the law that they must continue to co-habit until such marriage is dissolved.

“It is rather a ground for dissolution where it is shown that a party has deserted the marriage and the husband and wife have lived apart for a period of at least one year or two years.

“However, notwithstanding the toxicity of such a union, the dissolution of marriage is only granted by a high court where the marriage is contracted under the Act,” he argues.

The country director also notes that customary marriages are dissolved by the customary court.

Mrs Ebere Obiora, Ogun Coordinator of African Women Lawyers Association, notes that the Matrimonial Causes Act is the law under which statutory marriages are contracted.

According to her, the same statute vests jurisdiction on high courts only, to entertain cases arising from marriages contracted under the Act.

“However, an abused partner may not wait in a toxic marriage until his/her petition for dissolution of marriage is granted.

“The grant of marriage dissolution terminates the marriage, but delays associated with divorce proceedings may be a deadly trap for the abused partner.

“This calls to mind that the Marriage Causes Act also made provisions for a petition for judicial separation, which is a softer order of court concerning a failing marriage,” she says.

According to Obiora, judicial separation prohibits physical contact of the parties, but does not terminate the marriage.

She explains that this means that the partners remain in the marriage and, therefore, cannot re-marry.

“Unlike a divorce petition, an application for judicial separation may be brought at any time during the marriage where violence is proved.

“The grant of judicial separation, therefore, relieves parties from co-habitation and, more importantly, gives room for resolution of issues between partners, which may lead to reconciliation,” she adds.

She advises that judicial separation should not prevent filing of a petition for dissolution of the marriage, where there is no positive improvement in the relationship.

“The affected parties are free to apply to the court for dissolution of the marriage,” she says.

A Principal Partner at Ayoola Chambers, Lagos, Mr Julius Ayoola, emphasises that dissolution of a marriage depends on the type of marriage contracted by the couple.

He argues that dissolving a marriage that has broken down irretrievably is not the exclusive preserve of a high court.

According to him, a marriage contracted solely under customary principles will be dissolved in a customary court.

“In some customary marriages, the parties may decide to return the bride price.

“In Igbo culture, a customary marriage is deemed dissolved once the bride price has been returned,” he says.

Ayoola, however, says the high court may be interested in the custody and welfare of children produced by customary marriages.

“The high court has jurisdiction over the welfare of the children,” he says.

A Professor of Law and Senior Advocate of Nigeria (SAN), Samson Erugo, believes that it is not necessary for a high court to dissolve a marriage before the couple can live apart.

“That rule does not accord with reality, and most times, it works out hardship in practice.

“In some jurisdictions, parties could, by marriage dissolution agreement or mediation, agree to separate.

“Such an agreement could also be filed in court and adopted by the parties without the stress of a trial.

“I think this liberal approach should be adopted in Nigeria, in every established case of marriage that has broken down irretrievably,” Erugo argues.

He is convinced that requirement of a high court order to dissolve a marriage is rooted essentially in the Christian culture of sanctity of marriage.

“It is part of our colonial heritage and has been easily embraced by some local cultures that try to protect the marriage institution.

“While these arguments may still be strong, modern reality should provide exceptions,” he says.

Analysts urge intensified efforts in ensuring safety of lives of couples in abusive marriages, while protecting the marriage institution and ensuring the welfare of the children. (NANFeatures)