GENERAL PRINCIPLES ON MATRIMONIAL CAUSES
This can be said to be the reason or ground for a marriage, or types
of marriage. However, the law of matrimonial causes relates to monogamous
marriages contracted under the Marriage Act and not those contracted under
native law and custom – Hyde v. Hyde (1854) 1 Ecc. & Ad. 371, that
is, it applies to statutory marriage which is
contracted under the Marriage Act or in compliance with the Act, which is one
man and one woman to the exclusion of all others.
There are different laws
that are applicable under this discourse. They are –
1.
Matrimonial Causes Act (MCA), 1970, Cap. M7 LFN, 2004.
2.
Marriage Act (MA), Cap. M6, LFN 2004.
3.
Matrimonial Causes Rules (MCR), 1983.
4.
Case laws
5.
English Common Law Rules.
Under section 46 of the
Marriage Act, a person married under native law and custom cannot contract
another marriage under the Act except with the same person to whom he is
married under native law or custom.
However, it should be noted that under section 47 of the Act, no person married under the Act is allowed
to remarry under native law and custom, and there is no excuse that it was the
same person whom he was previously married to.
It is five (5) years imprisonment for anyone who defaults any of the
above provisions.
But, section 48 of the Act, states
that a person married under Native Law and Custom cannot marry any other person
under the Act except the one he married under Native Law and Custom.
JURISDICTION ON
MATRIMONIAL CAUSES
Jurisdiction under the Marriage
Causes Act is conferred on the High Court of a State – section 2 of the Marriage Causes Act. Where however maintenance has
been ordered in proceedings in a High Court, a court of summary jurisdiction
can enforce payment in a summary manner.
Actions in relation to
matrimonial causes can be commenced in any High Court of the State of the
Federation so long as the person bringing the action is domiciled in Nigeria – section 2(3) of the Act. Such person
need not be domiciled in the State in which the action is brought and, the marriage
needs not be contracted there – section
2(2) of the Act. However, the rule of "forum
convenience" is introduced whereby the court is empowered to transfer
matrimonial causes or a petition filed in a State High Court to any High Court
in any State if it is in the interest of justice that such matrimonial cause be
dealt with in that other State – section
9 of the Act; Adegoroye v.
Adegoroye (1996) 4 NWLR (Pt. 433) 712; Odiase v. Odiase (1965) NMLR 196. Thus,
where maintenance is ordered in proceedings in a High Court, a Court of summary
jurisdiction (for example, Magistrate Courts) in any State shall have
jurisdiction to enforce payment in a summary manner – section 2(1) of MCA.
For the court to have jurisdiction, the petition must
state the particulars relating to the domicile or residence of the petitioner
in Nigeria and the facts upon which the Court shall be asked to find that the
petitioner is so domiciled or resident – Order
5 Rules 1(3) and 3 of the Matrimonial Causes Rules.
It should, however, be
noted that jurisdiction of a court to entertain matrimonial causes is based
largely on ground of domicile of the parties – section 2(2)(a) of MCA; Bhojwani
v. Bhojwani (1996) 6 NWLR (Pt. 457) 661.. Therefore, if a court lacks
jurisdiction on ground of domicile (a person’s permanent home and not
nationality), the parties cannot by consent confer jurisdiction on it.
DOMICILE
OF A DESERTED WIFE
A deserted wife has personal domicile where she was
domiciled in Nigeria either immediately before her marriage or immediately
before the desertion; and a deserted wife who had been resident in Nigeria at
the date of the instituting proceedings under the Marriage Causes Act and has
been so resident for a period of three (3) years immediately preceding that
date shall be deemed to be domiciled in Nigeria at that date – section 7 of MCA; Koku v. Koku (1999) 8 NWLR (Pt. 616) 672.
PARTIES
IN MATRIMONIAL CAUSE PETITION
The parties to a marriage are proper parties to a
petition for a matrimonial relief, essentially husband and wife. But in certain
cases like adultery, a third (3rd) party who is alleged to have
committed adultery with a spouse may be joined to the proceedings as a
“Co-respondent” – section 32 of MCA. The
Court may, however, award damages against the co-respondent – section 31(1) of the MCA. But the
court, shall not award damages where the petitioner has condoned the adultery;
or where adultery is not a ground for a decree of dissolution of the marriage –
section 31(2) of the MCA; or where
the adultery has been committed more than three (3) years before the date of the
petition – section 31(3) of MCA.
MATRIMONIAL
RELIEFS
Under section
2(2) of MCA, there are different reliefs that may be applied for by a
person domiciled in Nigeria under matrimonial cause. They are –
1.
Dissolution of marriage;
2.
Nullity of a voidable marriage;
3.
Nullity of a void marriage;
4.
Judicial separation;
5.
Custody of the children of
marriage;
6.
Maintenance;
7.
Settlement of properties;
8.
Restitution of conjugal rights;
and
9.
Jactitation (a false claim) of
marriage.
DISSOLUTION
OF MARRIAGE
This has to do with divorce.
It is the most sought after relief of matrimonial causes. The circumstance
under which a court may make it is that the marriage was broken down
irretrievably – section 15(1) of MCA.
Under section 15(2) of MCA, the petitioner must satisfy the court of any
of the following facts below in order for the court to come to the conclusion
that a legally contracted marriage has been broken down –
a)
That
the respondent has wilfully and persistently refused to consummate the
marriage;
b)
That
since the marriage, the respondent has committed adultery and that the
petitioner finds it intolerable to live with the respondent;
c)
That
since the marriage, the respondent has behaved in such a way that the
petitioner cannot be expected to live with him or her;
d)
That
the respondent has deserted the petitioner for a continuous period of at least
one (1) year immediately preceding the presentation of the petition;
e)
That
the parties to the marriage have lived apart for a continuous period of at
least two (2) years immediately preceding the presentation of the petition and
the respondent does not object to a decree being granted;
f)
That
the parties to the marriage have lived apart for a continuous period of at
least three (3) years immediately preceding the presentation of the petition;
g)
That
the other party to the marriage has for a period of not less than one (1) year,
failed to comply with a decree of restitution of conjugal rights made under the
Act;
h)
That
the other party to the marriage has been absent from the petitioner for such a time
and in such circumstance as to provide reasonable ground for presuming that he
or she is dead.
It should be noted that under
section 30(1) of MCA, a petition for
dissolution of marriage cannot be presented within two years after the date of
the marriage except by leave of court. The leave shall not ordinarily be
granted unless to refuse to grant the leave would impose exceptional hardship
on the respondent – Akere
v. Akere (1962) WNLR 328; Majekodunmi
v. Majekodunmi (1966) WNLR 191; section
30(3) of MCA. In
the determination of application to grant leave, the court shall consider the
interest of any children to the marriage and the probability of the
reconciliation between the parties before the expiration of two years after the
date of the marriage.
However, where the
respondent has wilfully and persistently refused to consummate the marriage; or
since the marriage, the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent; or since the marriage the
respondent has committed rape, sodomy or bestiality, a petition for dissolution
of marriage within two (2) years can be brought without the need for leave.
The standard of proof in
any of the above matters is that established to the reasonable satisfaction of
the court – section 82 of MCA; and
the test is that of objectivity.
The period for which the
respondent has been continually absent from the petitioner so as to presume the
death of the respondent is seven (7) years prior to the presentation of the
petition – section 144 of the Evidence
Act.
COMMENCEMENT
OF PROCEEDINGS
Proceedings for a substantive matrimonial cause shall
be instituted by a petition – section
54(1) of MCA.
INSTITUTION OF PETITION FOR DISSOLUTION OF
MARRIAGE
Under section 30(1) of MCA, a petition for a decree of
dissolution of marriage shall not be instituted within two years after the date
of the marriage except with the leave of court. The reason for this is not only
to deter people from rushing into ill-advised marriages, but also to prevent
them from rushing out of marriage as soon as they are discovered that their
marriage was not what they expected – Fisher v. Fisher (1942) Probate 263, 264
(C.A), per Bucknill L. J.
PROCEDURE
FOR OBTAINING LEAVE
Application for leave to institute proceedings for
dissolution of marriage under such circumstances as stated above is by ex parte. The application shall be
supported by an affidavit setting forth –
1.
Particulars of the exceptional
hardship or exceptional depravity.
2.
The grounds upon which, if
leave is granted, the applicant intends to petition for the decree.
3.
The grounds on which the
petition for dissolution of marriage will be based and whether the applicant
has made any previous application for leave.
4.
Whether there are living
children of the marriage and if so, with whom or where the child resides,
including the name and date of birth of the child.
5.
Whether there has been an
attempt at reconciliation between the parties, if any, and the particulars
thereof.
6.
Any other fact that will assist
the court in determining whether there is a probability of reconciliation
before the expiration of the period of two years after the date of the marriage
– Order 4 Rule 1 & 2 of MCR.
The application shall also be accompanied with a copy
of the marriage certificate unless he is unable to do so – Order 4 Rule 3(1) of MCR.
Reasons for such failure shall be disclosed in the
affidavit in support of the motion – Order
4 Rule 3(4) of MCR.
Where leave has been granted by the court, the drawn
up order shall be served with the petition on the respondent – Order 4 Rule 4 of MCR.
However, the
two year rule shall not apply if the petition is based on any of the following
grounds –
1.
Where there is wilful and
consistent refusal to consummate the marriage based on section 15(2)(a) of MCA;
or
2.
There is adultery which the
petitioner finds intolerable to live with based on section 15(2)(b) of MCA; or
3.
Since the marriage, the respondent
committed rape, sodomy or bestiality based on section 16(1)(a) of MCA
4.
Where the institution of the
proceedings for a decree of dissolution of marriage is commenced by way of
cross-petition.
NULLITY OF A VOIDABLE MARRIAGE
Under section
5(1) of MCA, a marriage is voidable where at the time of the marriage –
a)
Either of the parties to the
marriage is incapable of consummating the marriage;
b)
Either of the parties to the
marriage is –
(i)
Of unsound mind;
(ii)
Mentally defective;
(iii)
Subject to recurrent attacks of
insanity or epilepsy;
c)
At the time of the marriage,
either party is suffering from a venereal disease in a communicable form.
d)
The wife is pregnant by a
person other than the husband.
However, under section
35 of MCA, a petition for nullity of marriage cannot be made by –
1.
The party suffering the
incapacity under section 5(1)(a) unless the party was unaware of the existence
of the incapacity at the time of the marriage; or
2.
The party suffering the disease
or disability under section 5(1)(b) or (c); or
3.
The wife under section 5(1)(d)
of MCA above.
It should be noted that under section 37 of MCA, a decree will not be made under section
5(1)(b)(c) & (d) of MCA above, except where the court is satisfied that –
1.
The petitioner was ignorant of
the fact constituting the ground at the time of the marriage;
2.
The petition was filed not
later than twelve (12) months after the date of marriage; and
3.
Marital intercourse has not
taken place with consent of the petitioner since the petitioner discovered the
fact constituting the ground.
NULLITY
OF VOID MARRIAGES
Under section 3
of MCA, a marriage is void ab initio in
any of the following instances –
1.
Where either of the parties is
at the time of the marriage lawfully married to some other person;
2.
The parties are within the
prohibited degrees of consanguinity or, subject to section 4 of MCA of affinity.
3.
The marriage is not a valid one
under lex loci celebrationis, that
is, the law of the place where the marriage takes place, by reason of a failure
to comply with the requirements of the law of that place with respect to the
form of solemnization of marriages;
4.
Lack of consent of either
parties because the consent of either parties is not a real consent, due to the
fact that –
(i)
It was obtained by duress or
fraud; or
(ii)
The party is mistaken as to
identity of the other party or as to the nature of the ceremony to be
performed; or
(iii)
The party is mentally incapable
of understanding the nature of the marriage contract;
5.
Either of the parties is not of
marriageable age (it should be noted that under the Child Rights Act, the age
of marriage is stated to be 18 years for both sexes).
PROHIBITED
DEGREES OF MARRIAGE
Certain degrees of people are prohibited from getting
married under section 3 of MCA, these
are people that are related by blood
(consanguinity) and by marriage (affinity).
The prohibited degrees under the schedule to the Act
are –
1.
Marriage of a man is prohibited if the woman is or has been his –
a)
Ancestress - Wife’s
mother.
b)
Descendant - Wife’s
grandmother.
c)
Sister - Wife’s
daughter.
d)
Father’s sister - Wife’s
son’s daughter.
e)
Mother’s sister - Wife’s
daughter’s daughter.
f)
Brother’s sister - Father’s
wife.
g)
Sister’s daughter - Grandfather’s
wife.
Son’s wife.
Son’s son’s wife.
Daughter’s son’s wife.
2.
Marriage of a woman is prohibited if the man is, or has been her -
a)
Ancestress - Husband’s
father.
b)
Descendant - Husband’s
grandfather.
c)
Brother - Husband’s
son.
d)
Father’s brother - Husband’s
son’s son.
e)
Mother’s brother - Husband’s
daughter’s son.
f)
Brother’s son - Mother’s
husband.
g)
Sister’s son - Grandmother’s
husband.
Son’s daughter’s husband.
Daughter’s daughter’s
husband.
However, where parties under the prohibited degrees of
affinity wish to marry, they may apply to a judge for permission to marry, and
if the judge is satisfied that there are exceptional circumstances in which
they qualify, the judge may by an order permit the parties to marry – section 4 of MCA.
Under section
33(2) of MCA, a marriage shall be null and void if both parties knowingly
and wilfully acquiesce in the celebration of a marriage in –
a)
A place other than the office
of a registrar of marriages or a licensed place of worship; or
b)
Under a false name; or
c)
Without registrar’s certificate
of notice – Chukwuma v. Chukwuma (1996) 1 NWLR (Pt. 426) 543; Anyaegbunam v.
Anyaegbunam (1973) 4 SC 121;
d)
By a person not being a
recognised minister of some religious denomination or a registrar of marriages.
Under section
34 of MCA, where a marriage is void or voidable, a petition for nullity of
marriage may be brought by the petitioner.
JUDICIAL
SEPARATION
This is a matrimonial relief that is similar to
dissolution of marriage in many aspects. The grounds for a petition for
judicial separation are provided for under section
39 of MCA. Thus, any of the grounds under section 15(2) and 16(1) of MCA is a ground of judicial separation.
The MCA permitted a decree of divorce “a vinculo matrimonii” to be obtained
through a judicial process; and the term ‘divorce’ was confined to this decree
alone. While divorce a “mensa et thoro” was
re-named “judicial separation”.
A decree of judicial separation only relieves the
petitioner from the obligation to cohabit with the respondent while the decree
subsists. It does not affect the status, rights and obligations of the parties
to the marriage – section 41 of MCA. This
means that under the section, the marriage is still valid and subsisting,
therefore, neither of the party to the marriage can remarry while the decree
subsists.
EFFECT
OF A DECREE OF JUDICIAL SEPARATION
1.
Either party to the marriage
may sue the other in contract or in tort against while the decree subsists.
2.
In the case of death of a party
intestate while the decree subsists, the property of the deceased shall devolve
on the surviving party as if that party had survived the other party to the
marriage.
3.
Where maintenance is ordered as
a consequence of a decree of judicial separation, and the husband fails to pay,
he shall be liable for necessaries supplied for the wife’s use – section 43 of MCA.
4.
The decree of judicial
separation does not act as a bar to subsequent proceedings for dissolution of
marriage – section 44 of MCA.
It should be noted that the existence of a decree for
judicial separation shall not prevent either party from bringing a petition for
dissolution of marriage. The court may also discharge a decree of judicial
separation where parties voluntarily resume cohabitation and both consent to
the order – section 45 of MCA.
CUSTODY
OF CHILDREN
The principles that govern award of custody of
children were stated in Nzelu v. Nzelu (1997) 3 NWLR (Pt. 494) 472, that
is, the welfare of the child – Damulak v. Damulak (2004) 8 NWLR (Pt. 874)
151.
MAINTENANCE
Under section
70(1) of MCA, the court has a discretionary power to make any order it
deems necessary for the maintenance of a party to the marriage – Erhanon
v. Erhahon (1997) 6 NWLR (Pt. 540) 667.
RESTITUTION
OF CONJUGAL RIGHTS
This may be a ground for the petitioner to petition
for dissolution or judicial separation where a party to a marriage without just
course refuses to cohabit with the other party and render conjugal rights.
To avoid a situation where a petitioner may be
engaging in faultfinding without sincerely desiring cohabitation, section 49 of MCA provides that the
court shall not make a decree of restitution of conjugal rights unless it is
satisfied that –
1.
The petitioner sincerely
desires conjugal rights to be rendered by the respondent and is willing to
render conjugal rights to the respondent; and
2.
A written request for
cohabitation, expressed in conciliatory language was made to the respondent
before the institution of the proceedings, or that there are special
circumstances that make it unnecessary to make such request notwithstanding
that such a request was not made.
A decree of restitution of conjugal rights where
granted cannot be enforced by attachment – section
51 of MCA; but it may however, be a ground to petition for dissolution if
the respondent fails to comply with the decree of restitution of conjugal
rights within one year of it being made – section
51(2)(g) of MCA. And the petition for a decree of conjugal rights shall be
in Form 7 – Order 5 Rule 25 of
Matrimonial Causes Rules (MCR).
JACTITATION
OF MARRIAGE
This is a relief available to a petitioner who claims
that he or she is not married to the respondent, but the respondent is
wrongfully and persistently boasting or asserting that he or she is married to
the petitioner, and the making of the decree shall be in the discretion of the
court – section 52 of MCA.
The petition must be in accordance with the
Matrimonial Causes Rules in Form 60 and should state the following –
1.
The date, time and place at
which the respondent is alleged to have boasted or asserted that a marriage had
taken place between the parties.
2.
The particulars of such
boastings and assertions.
3.
The fact that the parties are
not married and the petitioner has not acquiesced in the alleged boasting or
assertions – Order 22 Rule 3 of MCR.
PETITION
A petition for a decree of dissolution of marriage is
filed in Form 6 of MCR and shall contain the following –
1.
Full name of each party to the
proceedings;
2.
The address and occupation of
the petitioner and as far as known by the petitioner of each other party to the
proceedings;
3.
The name of the wife before the
marriage;
4.
The address and occupation of any
person not being a party to the proceedings specified as in the petition as a
person with whom or on whom the respondent committed adultery, rape or sodomy;
5.
The particulars of the marriage
includes place and date of marriage, nature of the ceremony, and the name of
the religious denomination if the ceremony is religious;
6.
The particulars of birth of the
parties;
7.
The particulars of domicile of
the parties;
8.
Particulars of cohabitation of
the parties;
9.
Particulars of the children of
the parties to the marriage or children of either party to the marriage as
required by Order 5 Rule 8 of MCR;
10.
Particulars of previous
proceedings between the parties;
11.
Facts relied on as constituting
the grounds specified in the petition;
12.
A statement that the petitioner
has not connived or condoned the grounds of the petition;
13.
Particulars of arrangement for
the welfare of the children;
14.
Particulars of order sought,
that is, the relies sought including order for maintenance, damages for
adultery, custody or guardianship of infant children of the marriage, costs of
the proceedings, etc.
15.
A petition shall bear the date
and signature on which it is filed. Such a petition must be signed by the
petitioner or his solicitor.
DOCUMENTS
TO ACCOMPANY PETITION
1.
Notice of Petition – It gives notice and instructions to the
respondent as to the steps to be taken by respondent after service of the
petition on the respondent in Form 8, 8A, and 9 of MCR. The notice is to be
signed and sealed by the Court Registrar – Order
5 Rule 28 of MCR, and he shall also sign and seal another copy if the
former is lost – Order 5 Rule 31 of MCR.
The notice of petition shall be in force for a period of twelve (12) months of
service from the date on which the petition was filed, though the court has the
power to extend such period but where this is done, the Court Registrar shall
indicate that fact on the notice – Order
5 Rule 32 of MCR.
2.
Marriage certificate – It is to show that marriage exists and
wants to be dissolved. However, where a petitioner is unable to file the
marriage certificate with the petition, he must state so in the affidavit
verifying the petition and the reason or reasons why he is unable to do so – Order 5 Rule 27 of MCR.
3.
Acknowledgement of service – It is by this the respondent or the co-respondent
shows that he has been served and that he proposes to defend the petition.
Without this a respondent or co-respondent has no locus standing in the action,
and the action will be considered undefended. It stands in place of appearance
to proceedings by writ of summons.
4.
Verifying Affidavit – The purpose of this is to confirm the
truthfulness of the matters stated in the petition.
PRAYER
The respondent or
co-respondent (where there is one) must file an answer in which he shall deny,
admit or allege facts that he intends to rely on in defence of the petition or
state that he does not know and cannot admit the truth of a fact alleged in the
petition – Order 7 Rule 1(1) of MCR, within
the time limited in the notice of petition – Order 7 Rule 1(4) of MCR. Where an answer contains an allegation of
fact, such fact, may be denied by filing a reply by the petitioner. This is
done within fourteen (14) days of the service of the answer on the petitioner –
Order 7 Rule 4(6) of MCR. The other
party (respondent or co-respondent) may then file a rejoinder, if need be, in
respect of allegation of fact arising from a reply – Order 7 Rule 6(1) of MCR, within fourteen (14) days of the service
of the reply – Order 7 Rule 6(2) of MCR.
ADDRESS
FOR SERVICE
A person is not entitled in matrimonial proceedings to
file any document except by that document or a document previously filed by
him, he gives an address for service as in Form 1 of MCR – Order 1 Rule 2 of MCR.
If a person fails to give
an address for service, he shall not be entitled to be heard upon the trial or
any other proceedings or application, and therefore, cannot complain of not
being served a Court process – Anyanso v. Anyanso (1998) 9 NWLR (Pt. 564)
150.
A person’s address for
service shall be that of his legal practitioner where he is represented by a
legal practitioner – Order 1 Rule 12(4)
of MCA.
For a party to change his
address of service, he must file and serve a form in accordance with Form 2 of
MCR.
RECONCILIATION
Under the Act, the court is
enjoined to give consideration to the possibility of reconciliation, where,
from the nature of the case or attitude of the parties this is possible.
For this purpose the court
may –
1. Adjourn proceedings to give the parties the
opportunity of becoming reconciled;
2. With the consent of the parties, interview
them in chambers, with or without counsel;
3. Nominate a marriage counsellor or any suitable
person who can possibly effect reconciliation – section 11(1)(c) of MCA.
If however after fourteen (14)
days from the date of adjournment, either of the parties requests that the
proceeding should continue, the court shall resume hearing. It should be noted
that a judge who has acted as a reconciliator cannot sit upon the case, where
the hearing is to continue, except the parties request that he does so. Thus,
the proceedings shall be dealt with by another judge – section 12 of MCR.
Evidence of anything said of
or any admission made in the course of reconciliation is inadmissible in any
court or tribunal – section 13 of MCR. However,
a marriage conciliator under this part is required to take an oath of secrecy
before assuming such role – section 14
of MCR.
SETTING DOWN THE SUIT FOR TRIAL
Counsel for the petitioner
is required to make a request to set down the suit for trial. The suit can
either be defended or undefended. If it is undefended suit, the request is made
by using FORM 31 of MCR, and the counsel is to state the number of days he will
require for the trial – Order 11 Rules
39 of MCR. Where it is defended suit, the request is made by using FORM 32,
the counsel also states the number of days he will require for trial – Order 11 Rule 41 of MCR.
HEARING
By virtue of section 103(1) and (2) of MCA, proceedings
in matrimonial causes are to be heard in public and not in chambers except
where there are special circumstances that require in the interest of justice
that such proceedings be not heard in open court. In such circumstance, the
court may order persons not being parties or their legal advisers to be
excluded – Menakaya v. Menakaya (2001) 43 WRN 1, where the Supreme Court
held that this did not permit a court to sit in chambers to hear matrimonial
proceedings but rather allows the proceedings to be heard in court with the
public excluded.
DECREE
NISI AND DECREE ABSOLUTE
After the conclusion of the trial in a
petition for dissolution of marriage or nullity of a voidable marriage, the
court may grant a decree nisi in the first instance – section 56 of MCA, which will be made absolute after the expiration
of three (3) months from the making of the decree – section 58 of MCA.
Until the decree becomes absolute, the
marriage is deemed to be subsisting – Amobi v. Nzegwu (2006) All FWLR (Pt. 297)
1087. The decree will also not be absolute if a party to a marriage
dies before the expiration of the three (3) months.
The court may also make any other order
depending on what the parties to the proceedings sought before the court. In
order to enforce a decree against any person, such person must have been served
a copy thereof personally and the service shall be –
TAKE NOTICE that if
you fail to carry out the act required of you by the decree or order, within
time specified in the decree or order for carrying out those acts, further
legal proceedings shall be taken against you for the purpose of carrying out
those acts – Order 17 Rule 2 MCR.
INTERVENTION
BY THIRD PARTIES
Under section 62 and 65 of MCA, other parties can in appropriate
circumstances intervene in any matrimonial proceedings, that is, the
Attorney-General may intervene proceedings at the invitation of the court to
contest or argue any question arising in the matrimonial proceedings; or where
he feels that matters which ought to be brought to the notice of the court have
not been brought – section 63 of MCA.
Apart from the Attorney General, other persons who may be able to prove facts
relevant to the proceedings that ought to be made known to the court can also
intervene – section 65 of MCA.
DISCRETION
STATEMENT
This statement is required
to be filed where a party to the proceeding has committed adultery. It must be
in accordance with FORM 30. The statement must be signed by the party who has
made it, otherwise it will be void. It must then be put in a sealed envelope
with the suit number of the proceeding boldly written on it and marked
‘Discretion Statement’; and stating that despite the adultery, the petition
should still be granted – Erhahon v. Erhahon (supra). The
envelope will be signed by the Legal Practitioner.
COMPULSORY
CONFERENCES
This is required to be held
where a defended suit includes issues relating to the following –
1. Maintenance of a party to the proceedings;
2. Settlement of property jointly owned;
3. Custody or guardianship of an infant child to
the marriage; and
4. Maintenance, welfare, advancement or
education of a child before such a suit can be set down for trial, and the
parties are not in agreement as to the order that should be made by the court.
The conference should also
be held where the proceedings relate to nullity of marriage – See Order 11 MCR.
ETHICAL
ISSUES
1. Rule 14(1) of the Rules of
Professional Conduct (RPC), 2007 – A
lawyer shall dedicate and devote his attention to the cause of his client.
2.
Rule
15(3)(g) of RPC – A lawyer shall not knowingly make a
false statement of law or fact.
3.
Rule
16(1)(c) of RPC – A lawyer shall not handle a matter
without adequate preparation.
