Stage Three Indexing

CHAPTER THREE

FAMILY MAINTENANCE AND CHILD CUSTODY

now equally liable to pay maintenance to the husband if the court directs. In my view, this heightens the problem of women folk in Nigeria. Going by Nigeria‘s social background, it is odd to ask a woman to maintain a man particularly in marriage situation. But by so providing for it in our MCA, some courts have applied it in their judgments.

For instance, in Ajidahun v Ajidahun³, the petitioner was Daphine Oteri Ajidahun who was not only granted custody of the only child of the marriage but was also given the responsibility for the education of the child from kindergarten school to the university level, and the cost of such education was to be borne by Mrs. Ajidahun, the petitioner.

That was the judgment of the trial court. However, it is settled law that under the common law, a wife has right to be maintained by the husband. The court of Appeal in Erhahon v Erhahon⁴ held as follows: ‗Now the right of a wife to maintenance as against her husband is not contractual in nature. A man has common law duty to maintain his wife and such a wife then has a right to be maintained.‘

In Onabolu v. Onabolu⁵ , Ige, J stated that ‗a husband is obliged to maintain his wife, and may by law be compelled to find her necessaries as meat, drinks, cloths, physic etc.

suitable to the husband‘s degree, estate or circumstance‘. On factors to be considered in making awards concerning maintenance of a party, Aderemi, JCA in Hayse v Hayse⁶ articulated the factors to be taken into account as follows:

1. The station in life of the parties and their lifestyle.

3 [2000] 4 NWLR (pt. 654) 605

4 [1997] 6 NWLR (pt. 510) 667 at 698 (b)

5 (2005) 2 SMC 135

6 [2000] 3 NWLR (pt 648) 276

2. Their respective means and existence or non-existence of child or children and 3. The conduct of the parties.

Also in Menakaya v Menakaya⁷, the Court of Appeal laid down the guiding principles for our courts in awarding maintenance in divorce petition. The major principles according to the court are:

a. The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future.

b. The financial needs, obligations and responsibilities, which each of the parties has or likely to have in the foreseeable future.

c. The standard of living enjoyed by the family before the breakdown of the marriage.

d. The age of each party to the marriage

e. Any physical or mental disability of either of the parties to the marriage.

f. The contributions made by each of the patties to the welfare of the family including any contribution made by looking after house or care for the family and

g. In proceedings for divorce or nullity of marriage, the value of either party or any benefit like pension which by reason of the dissolution or annulment of the marriage, a party will lose the chance of acquiring.

7 [1996] 6 NWLR (pt. 422) 250

In Menakaya‘s case, the Court of Appeal further stated that when children are involved, the court must lean in favour of their welfare in assessment of their maintenance and education. This, according to the court, is of paramount importance in the whole matter, which must attract the attention of the court over and above other considerations. The court stressed that it must ensure that social and economic life of the children do not diminish on account of the divorce of the parties. The children, according to the court, should not suffer further pains as that would amount to punishing them twice.

It is pertinent to note that the phrase ‗the conduct of the parties‘ which is equally contained in the MCA of Nigeria⁸ as one of the determining factors in the award of maintenance to a party in Nigeria, is a clear departure from the no-fault innovation of the Act and by implication, a re-introduction of the element of fault that the Act desired to do away with.

On the wife‘s maintenance, the Court of Appeal in Akinbuwa v Akinbuwa⁹ held that relevant consideration in award of maintenance of a wife is the background of the standard of life which the husband previously maintained before he and his wife parted.

In Anyaso v Anyaso¹⁰, ―the court appeared to have introduced a new factor. It was held that ‗in assessing the amount of maintenance, the court should consider the current or prevailing market force, as dictated by the price index‘. In this case, the court took into consideration the current and not the previous buying power of the Naira.

Consequently, the court, in so doing, awarded a sum of money that could afford the

8 Section 70

9 [1998] 2 NWLR (pt. 559) 661

10[1998] 2 NWLR (pt 554) 100

respondent and her baby a decent life approximate to and not one different from, what they were used to in the appellant‘s name.

On various modes of payment of maintenance by a spouse, the Nigerian MCA¹¹ in its wisdom provided that it could be periodic, weekly, monthly or yearly. An order of lump sum payment can also be made by the court. However, the following principles with regard to lump sum payment have been laid down by the Court of Appeal in the case of Menakaya v Menakaya¹². Firstly, the court is to consider the ability of the husband to pay the lump sum. The court in this regard, is expected to consider the financial state of the husband, particularly in terms of capital assets. Secondly where there is evidence that the lump sum award will cripple the earning power of the husband, the court will hesitate to make the award.

Thirdly, if the husband is in a good financial position to make such payments, the courts should not hesitate to make the order, as it will enable the wife to invest it and live on the income. Fourthly, in assessing the sum, the court would take into consideration the standard of living of the wife when she was with the husband.

Finally, the court will anticipate what other foreseeable financial benefits the wife could have enjoyed in the matrimonial home, but for the divorce. The court therefore held that it is reasonable for a lump sum to be awarded to her to anticipate or reflect such benefit.

In a 2010 case of Doherty v Doherty¹³, a marriage solemnized on 8^th December 1960 was dissolved on 26^th October, 1995 (35 years marriage).

11Section 73 12Supra

13 [2010] All FWLR (pt. 519) p. 1145

The petitioner was dissatisfied with the court judgment as to maintenance and settlement of property and therefore filed an appeal in the Court of Appeal.

The Court held as follows:

1) The Alimony is a financial provision made by a husband and is claimable by the wife while the marriage still subsists, including the intention period between decree nisi and absolute. Maintenance, on the other hand, is a provision made by a man to his former wife after final dissolution of the marriage. A claim for both maintenance and alimony is a complete sham.

2) The relevant consideration in the award and assessment of maintenance under section 70(1) MCA, 1970 are:

(a) The station of life of the parties and their life style;

(b) The existence of defendant children; and (c) The conduct of the parties.

3) On settlement of property, in making an order, it is the primary duty of the court to appraise and evaluate the evidence adduced before it and equitably considering the surrounding circumstances, as settlement of property is based on what the court considers just and equitable (section 72 (1) MCA 1970).

Again in 2009 case of Ugbah v Ugbah,¹⁴ at the trial court, Veronica the respondent as plaintiff sued Patrick, her husband the appellant at High Court of Lagos State for

14 [2009] All FWLR (pt. 472 ) 1103 at 1118 CA

dissolution of the marriage and an order to compel the husband to pay her maintenance and the welfare and education of the children of the marriage.

However, the action was instituted by a writ of summons and not by way of a petition as stipulated by the Nigerian MCA and the court held that ‗by section 54 of MCA, proceedings under the Matrimonial Causes Act are regarded as special class of action which requires to be instituted by way of petition and no other way save by leave of court.‘

The Problem Created by the MCA, CAP M7 LFN 2004

The Act, unfortunately, made all the guiding principles enunciated in the foregoing cases discretionary and not mandatory on any court. The principles merely assist the court in the exercise of its discretion under section 70 of the MCA. In Akinboni v Akinboni¹⁵, the Court of Appeal clearly noted this problem created by the Act by conceding that the principle was mere guides in exercise of its discretion. It is my submission therefore that in view of the vital nature of the financial aspect of divorce, the MCA ought to make these ‗guiding principles‘: mandatory. By so doing, this very important area of our law would no longer be based on the whims and caprices of the presiding judges who could be adversely influenced by their own personal marital experiences.