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Legal and Psycho-Social Issues in Divorce
and Child Custody.
1Ndubuisi A. Nwafor & 2Chidozie E. Nwafor
1Faculty of Law, University of Nigeria, Enugu Campus.
2Department of Psychology Nnamdi Azikiwe University Awka
Abstract
Marriage is one of the oldest institutions of human history, it is a social contract and
traditionally between a man and a woman, Lord Penzance defined it as “the voluntary union
for life of one man and one woman to the exclusion of all others”. It will be germane to note
that whenever a marriage has broken down irretrievably between the contracting parties,
then it becomes a reservoir for sometimes intractable legal and social problems. The man
and the woman may be happy to unburden the marriage and get a divorce, but the issues of
what law and social parameters can work in order to secure the best interests of the issues
of marriage(children) sometimes create unfathomable social problems. The scope of this
paper is to critically analyze the issues and problems that usually blaze the trail of a failed
marriage and what a lawyer and a psychologist would do in the circumstance to propagate
and secure the emotional, social, psychological, physical and moral well being of the children
of a failed marriage. This research will employ analytical, critical, historical and empirical
methodology, the extant laws of the matrimonial causes Act that regulate divorce and
custody will be critically analyzed in order to create a comparative confluence between
psychology and law in what the researcher will be termed as “psychology of matrimonial
causes”.
Key words: Legal; Psycho-social; divorce; child custody
Introduction
Marriage is one of the oldest institutions of mankind. It is the coming together of a
man and woman for the purpose of procreation and society. Marriage has been
defined in the case of Hyde v Hyde which was heard 20 March 1866 before Lord
Penzance, and established the common law definition of marriage as “The
voluntary union for life of one man and one woman to the exclusion of all others.”
Statutorily, the registrar’s certificate is a prerequisite to the celebration of a valid
marriage. In the case of Amobi v Nzegwu (2014) ALL FWLR pt 730, 1285 marriage
under the Act has been defined as “the legal union of a couple as spouses”. This
paper will also include marriage celebrated under the native law and custom as a
subsisting marriage where matrimonial mishap can happen to scuttle. It has been
held in the case of Motoh v Motoh (2011) ALL FWLR, Pt 584, 81 that:
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The essential ingredients of a valid customary law marriage are
payment of dowry ceremony, carrying of the bride to the house of the
bride-groom must be proved by calling evidence to establish whether
there was a valid marriage under the customary law”. Once all these
are established, then the customary court seized with the jurisdiction
to determine the fallout of customary marriage must be guided by the
same principles enunciated for the dissolution of marriage and
awarding custody under the matrimonial cause Act.
It will be germane to observe that a failed marriage is a gateway to many social
and legal vices. It therefore falls within the ambit of those specifically trained to
give psycho-socio counseling and therapy to administer the necessary help needed
in minimizing the wrecking effect of a failed marriage. It is a fact that divorce can
take toll on economic, mental and social wellbeing of the couple, more so, the
problems created by custody and division of property can also open an ugly
episode in the matrimonial war. The aim of this paper is to create the need for
collaboration between law and psychology in solving sometimes the intractable
problems associated with crumbling marriage.
The law does not force unwilling spouses upon each other. Whenever the
marriage has broken down irretrievably, it is the duty of the court to determine
the marriage and give it a decent burial via decree nisi and decree absolute. It has
been held in the case of Amobi v Nzegwu (2014) ALL FWLR, pt730, 1285, that:
Decree nisi is a courts decree that will become absolute unless the
adversely affected party shows the court within specified time why it
should be set aside. Decree Absolute is ripened decree nisi that is a
court’s decree that has become unconditional because the time
specified in the Decree nisi has passed”.
It is the law that when marriage has broken down irretrievably, it means no more
than the parties thereto is irreconcilable, incompatible, incongruous and
implacable. Such a relationship is irrecoverable, irreparable and irredeemable.
Such a relationship cannot in anyway benefit from any artificial life support. (See
Okoro v Okoro (2011) ALL FWLR, pt 572,1755.
Saposnek (2004) is of the opinion that in helping couples to successfully negotiate
the ending of their marital relationship, it is vital for the divorce professional to
understand the underlying dynamics of the family as a system in the divorce
process. The professional must grasp how the divorce crisis influences and is
influenced by both family structure and family process.
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Family is the major casualty of any faulty marriage, therefore viewing the family as
a system allows one to conceptualize events that might seem irrational and
disparate within a framework that gives meaning and sense to these events.
Indeed, the family going through divorce does not break up as can be used in the
everyday common man parlance, but rather is restructured and reorganized. As
Ahrons and Rodgers (1987) pointed out:
While marriages may be discontinued, families-especially those in
which there are children continue after marital disruption... They do
so with the focus on the two ex-spouse parents now locate in separate
households. Two nuclei to which, children and parents as well as
others, must relate.
Ahrons coined the term "binuclear family" to describe this modal form of post-
divorce family structure
MATRIMONIAL LITIGATION
A psychologist is one of the qualified persons to check the emotional, mental and
social pulse of a troubled marriage. The letters of the law hardly do justice to
either of the spouses, but can at best aggravate the anger, desperation and
justifications that are the harbingers of divorce. While a legal divorce is an event,
occurring when a judge signs a marital dissolution decree, an emotional divorce is
best viewed as a process that occurs minimally over several years, and maximally
over the course of a lifetime. Typically, the divorce process begins several years
before the actual date of separation, when one of the spouses begins to experience
a predictable set of feelings, which may include disillusionment, dissatisfaction,
anxiety, and alienation. The divorce literature generally suggests that in 75 to 90
percent of all contemporary divorces, one spouse wants out of the marriage while
the other does not (Ahrons, 1981; Kaslow & Schwartz, 1987; Kelly, 1982; Kressel,
1985; Wallerstein & Kelly, 1980), with women more often initiating the divorce
(Kelly, 1982).
Whenever a marriage has broken down irretrievably, parties are not to result to
self help due to the socio-legal implications and consequences that may come up,
the best thing to do is to approach a psychologist or other allied helping
professionals who will analyze the situation and advised the couple accordingly of
the implications of marital severance. After this phase, parties can approach a
divorce attorney, seek relevant advice and approach the court for various
matrimonial decrees available to disgruntled parties to a valid marriage. Litigation
is the “default” method of resolving disputes, meaning that unless the parties
agree otherwise somewhere along the way, the issue will be resolved in litigation.
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The Matrimonial Causes Act of 1970 regulates the contract, dissolution and other
ancillary reliefs of marriage in Nigeria. Section 15 of the Matrimonial Causes Act
provides that:
1. A petition under this Act by a party to a marriage for a decree of dissolution
of the marriage may be presented to the court by either party to the
marriage upon the ground that the marriage has broken down
irretrievably.
2. The court hearing a petition for a decree of dissolution of a marriage shall
hold the marriage to have broken down irretrievably if, but only if, the
petitioner satisfies the court of one or more of the following facts-
i. That the respondent has wilfully and persistently refused to
consummate the marriage;
ii. That since the marriage the Respondent has committed adultery
and the petitioner finds it intolerable to live with the respondent;
iii. That since the marriage the respondent has behaved in such a way
that the petitioner cannot reasonably be expected to live with the
respondent;
iv. That the respondent has deserted the petitioner for a continuous
period of at least one year immediately preceding the presentation
of the petition;
v. That the parties to the marriage have lived apart for a continuous
period of at least two years immediately preceding the presentation
of the petition and the respondent does not object to a decree being
granted;
vi. That the parties to the marriage have lived apart for a continuous
period of at least three years immediately preceding the
presentation of the petition;
vii. That the other party to the marriage has, for a period of not less
than one year failed to comply with a decree or restitution of
conjugal rights made under this Act;
viii. That the other party to the marriage has been absent from the
petitioner for such time and in such circumstances as to provide
reasonable grounds for presuming that he or she is dead.
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3. For the purpose of subsection (2) (e) and (f) of this section the parties to a
marriage shall be treated as living apart unless they are living with each
other in the same household.
More so, section 16 of the Matrimonial Causes Act provides that:
1. Without prejudice to the generality of section 15(2)(c) of this Act, the court
hearing a petition for a decree to of dissolution of marriage shall hold that
the petitioner has satisfied the court of the fact mentioned in the said
section 15(2)(c) of this Act if the petitioner satisfies the court that-
a. Since the marriage, the respondent has committed rape, sodomy, or
bestiality; or
b. Since the marriage, the respondent has, for a period of not less than
two years-
i. Been a habitual drunkard, or
ii. Habitually been intoxicated by reason of taking or using to
excess any sedative, narcotic or stimulating drug or
preparation, or has, for a part or parts of such a period, been a
habitual drunkard and has, for the other part or parts of the
period, habitually been so intoxicated; or
c. Since the marriage, the respondent has within a period not exceeding
five years-
i. Suffered frequent convictions for crime in respect of which the
respondent has been sentenced in the aggregate to
imprisonment for not less than three years, and
ii. Habitually left the petitioner without reason- able means of
support; or
d. Since the marriage, the respondent has been in prison for a period of
not less than three years after conviction for an offence punishable by
death or imprisonment for life or for a period of five years or more,
and is still in prison at the date of the petition; or
e. Since the marriage and within a period of one year immediately
preceding the date of the petition, the respondent has been convicted
of-
i. Having attempted to murder or unlawfully to kill the petitioner,
or
ii. Having committed an offence involving the intentional
infliction of grievous harm or grievous hurt on the petitioner or
the intent to inflict grievous harm or grievous hurt on the
petitioner;
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f. Or the respondent has habitually and wilfully failed, throughout the
period of two years immediately preceding the date of the petition, to
pay maintenance for the petitioner-
i. Ordered to be paid under an order of, or an order registered in,
a court in the Federation, or
ii. Agreed to be paid under an agreement between the parties to
the marriage providing for their separation; or
g. The respondent-
i. Is, at the date of the petition, of unsound mind and unlikely to
recover, and
ii. Since the marriage and within the period of six ears
immediately preceding the date of the petition, as been
confined for a period of, or for periods aggregating, not less
than five years in an institution where persons may be confined
for unsoundness of mind in accordance with law, or in more
than one such institution.
2. Where a petition is based on the fact mentioned in section 15(2)(h) of this
Act
i. Proof that, for a period of seven years immediately preceding the
date of the petition, the other party to the marriage was continually
absent from the petitioner and that the petitioner has no reason to
believe that the other party was alive at any time within that period
is sufficient to establish the fact in question, unless it is shown that
the other party to the marriage was alive at a time within that
period; and
ii. A decree made pursuant to the petition shall be in the form of a
decree of dissolution of marriage by reason of presumption of
death.
The above are the key provisions that oversee the dissolution of marriage and the
grounds upon which a petitioner can based his/her cause of action for the
dissolution of marriage. It will be instructive to observe that the above sections
can only be ventilated through litigation, as there is no court of arbitration or
mediation that has the jurisdiction to adjudicate on the matters contain therein on
the Act. The problem is that none of the methods of dispute resolution are ideal.
Each of them has drawbacks which prevents it from being an efficient and reliable
method to resolve disputes.
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In contrast to litigation, the mediation format, which involves the hiring of a
neutral third party whose function is to educate, empower, and enable the couple
to negotiate their differences to a settled agreement, is one which is less likely to
have a negative psychological impact on the divorcing couples (Folberg & Milne,
1988; Folberg & Taylor, 1984; Haynes, 1981; Lemmon, 1985; Moore, 1986). Unlike
litigation, mediation creates a positive negotiation environment in which anxiety
is significantly reduced and is replaced by a healthy concern for the issues which
confront both parties and for the decisions which each must make. Therefore the
mediation process can be said to be therapeutic. Divorce is a very impassioned
process, couples go through it in stages, and their emotional content is what
determines the type of dispute resolution process they may settle for. If the parties
are not severely hurt but just gradually grown apart, then they may chose a mild
dispute resolution approach like mediation or arbitration in order not to hurt
their social ties within and outside the marriage. But where the issues facilitating
the dissolution of marriage are hostile, then parties may chose litigation in order
to get revengeful justice against the offending spouse.
Cost of Litigation
The cost of litigation is overwhelming; it can result to emotional and financial
bankruptcy. Litigation is adversarial in nature, and it is true that matrimonial
conflict comes as a result of personal problems between the spouses. Marriage is
rightly described as a social contract, and issues that scuttle it are always painful,
personal and pernicious to the mental, physical and social well being of the
contracting spouses. An adversarial method of dispute resolution like litigation
will go a long way to foist an unending bitterness that will always infuriate the
spouses.
Emotional Cost
Matrimonial emotional cost is always predicated on anger and frustration. It is
important to note that anger, as manifested in threats of all kinds, is most often a
secondary emotion (Saposnek, 2004). That is, it is a feeling that covers up more
primary feelings of hurt, fear, humiliation, loss, abandonment, and powerlessness.
Without knowing this fact, it is easy for professionals involved in divorce disputes
to view the husband's threats as evidence of his violent tendencies, rather than as
understandable reactions to a multitude of primary feelings that he may be
experiencing (Holmes & Rahe, 1967). If a rejected spouse cannot re-establish the
partner's love, at least he can cause that ex-partner enough pain so as not to be
completely ignored or forgotten (Kessler, 1975).
Cruelty is another endpoint of the emotional cost of marriage. The spouses can be
the victim or the purveyor of this negative attitude. In determining what amounts
to cruelty in the matrimonial causes, the court must bear in mind the fact that
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cruelty may arise from a single act or an accumulation of acts. The test is
objective”. See the case of Williams v Williams (1966) ALL NLR, P.1775, Para F.
It is the law that, the court should consider the entire evidence before it, the
appraisal of cruelty should be objective before it can be adjudicated that the
conduct of either of the spouses is such that it is likely to cause or produce
reasonable apprehension of danger to life, limb or health of the victim-spouse.
Economic Cost
A vital concern of both parties during the litigation stage is their economic
survival and sustainability. For most couples, the expense involved in dividing one
household into two is considerable. At first, it may seem unfathomable to the
parties that they will be able to survive while maintaining two households. This
uncertainty may evoke strong feelings of ambivalence, confusion, self-doubt,
resentment, and frustration within both parties.
Then, when attorneys begin making offers back and forth (which typically are
positioned strongly for tactical purposes), these feelings escalate to an even
greater intensity (Saposnek, 2004). While many couples are able to proceed
through these negotiations with relative equanimity, it is not uncommon for
couples who have always been rather pleasant to each other to begin to act quite
viciously toward each other. Partly, this behavior derives from the exaggerated
positions taken by attorneys for bargaining leverage, and partly, it derives from
the powerlessness and helplessness felt when negotiations are being conducted
out of the control (and frequently out of the comprehension) of the
parties(Saposnek, 2004).
Mediation as mode of Alternative Dispute Resolution (ADR) has many advantages
over litigious attorney negotiations, one of the advantages is to empower the
parties to negotiate directly and constructively and to allow each party to
experience a feeling of control over the legal process of the divorce.
Custody of Children: Who the Law Covers
According to Young Persons Act, a child is statutorily defined as a person less than
14 years of age, while a young person is between 14-17 years. United Nations
Convention on the Rights of a Child defines a child as a person below the age of 18
years. According to Matrimonial causes Act of 1970, a custody in respect of the
application of section 71(1) is any person below the age of 21 years.
It can then be put forward that the meaning of a child must in every case depend
on the context in which it appears, any issue of the marriage who is below 21
years must benefit from the ‘paramount interest” consideration whenever custody
of a child is in issue. Custody of the children of the marriage can be another
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chapter in the matrimonial battle. This is governed by section 71(1) of the
Matrimonial Causes Act of 1970. In Alabi V Alabi, it has been held quoting section
71(1) of MCA 1970 that:
In a proceedings relating to custody, guardianship, welfare and
advancement of education of the children, the court is enjoined to
make the best interest of the children paramount.
Justice Belgore Rtd held in Odogwu vs. Odogwu (1992) 2 NWLR (part 225) that:
Welfare of a child is not the material provisions in the house-good
cloths, food, televisions, and all gadgets normally associated with the
middle class, it is more of the happiness of the child and his
psychological development.
It has been held in Butanhot v Butanhot (2011) ALL FWLR, Pt 566,555 that, the
welfare of the marriage in terms of their peace of mind, happiness, education and
coexistence is the prime consideration in granting custody. It is germane to note
that, even children not born in wedlock can come in the question during the
consideration of custody issues. It is the law in accordance with the case of Motoh
v Motoh (2011) ALL FWLR, Pt 584, 81 that children born out of wedlock can also
be regarded as legitimate children, if the paternity has been acknowledged by the
putative father. The custom of legitimization by acknowledgement of paternity
and placing illegitimate children in the same position for inheritance as children
conceived in a lawful wedlock can only be allowed by the court in so far as it
affected illegitimate children not born during the continuance of a statutory
marriage. Custody is a very delicate matrimonial exercise which involves in-depth
investigation by a psychologist in order to decipher where the paramount interest
of the child lies. This is not an easy task, and it is a self evident truth that judges
may not be able to do justice in such scenario without being aided by a
professional trained in child development and other ancillary areas. It has been
held in Okoro v Okoro (2011) pt 572, 1759 that:
The determination of welfare of the child is composite of many
factors. Consideration such as the emotional attachment to a
particular parent, mother or father, the inadequacy of the facilities
such as educational, religious, or opportunities for proper upbringing
are matters which may affect the determination of who should have
custody. What the court deals with is the lives of human beings and
ought not to be regulated by rigid formulae.
Conclusion
The psychology of matrimonial causes is predicated on the fact that apart from the
criminal system of administration of justice, matrimonial causes is another
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important area where a psychologist should have a credible role to play. The
services of a psychologist will be invaluable in the statutorily imposed ADR
(Alternative Dispute Resolution) that the law imposes upon parties seeking the
dissolution of marriage. The aim of this grievances remedial method is for the
spouses to try their hands at amicable resolution of dispute. Litigation has a
win/lose disposition, and whenever parties go through it, they do not ever come
out the same, and this has the tendency to hurt other post divorce proceedings like
custody, maintenance and partitioning of property.
In the final analysis, this paper will reiterate the immortal advice of Abraham
Lincoln thus:
Discourage Litigation Persuade your neighbors to compromise
whenever you can. Point out to them how the nominal winner is often
really a loser - in fees, expenses and waste of time. As a peacemaker,
the lawyer has a superior opportunity at being a good man. There will
still be business enough (Abraham Lincoln, 1850).
Psychology can therefore aid law in so many ways, especially in deciphering the
intricacies of matrimonial disputes that sometimes can confound even the mind of
brightest lawyers and judges alike.
References
Ahrons, C. (1979). “The Binuclear Family: Two Households, One Family.
Alternative Lifestyles 2 499-515.
Ahrons, C. (1981). The continuing co-parental relationship between divorced
spouses. American Journal of Orthopsychiatry, 51, 415-428
Ahrons, C. & Rodgers, R. H. (1987). Divorced Families: A multidisciplinary
Developmental View. New York: W.W. Norton
Folberg, J. & Milne, A. (Eds). (1988). Divorce Mediation: Theory and Practice. New
York: Guilford.
Folberg, J. and Taylor, A. (1984). Mediation: A Comprehensive Guide to Resolving
Conflicts Without Litigation. San Francisco: Jossey-Bass
Haynes, J.M. (1981). Divorce Mediation: A Practical Guide for Therapists and
Counselors. New York: Springer.
Holmes, T. H. and Rahe, R. H. (1967). The Social Readjustment Rating Scale.
Journal of Psychosomatic Research, 11 (2), 213-218.
Kaslow, F. W. (1984). Divorce: An Evolutionary Process of Change in the Family
System. Journal of Divorce, 7, 21-39;
Kaslow, F. W. & Schwartz, L. L. (1987). The Dynamics of Divorce: A Life Cycle
Perspective. New York: Brunner/Mazel.
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Kelly, J. B. (1982). Divorce: The Adult Perspective. In B. B. Wolman, (Ed.),
Handbook of Developmental Psychology. Englewood Cliffs, NJ: Prentice-Hall;
Kessler, S. (1975). The American Way of Divorce: Prescriptions for Change. Chicago:
Nelson-Hall.
Kressel, K. (1985). The Process Divorce: How Professionals and Couples Negotiate
Settlements. New York: Basic Books.
Lemmon, J.A. (1985). Family Mediation Practice. New York: Free Press.
Moore, C.W. (1986). The Mediation Process: Practical Strategies for Resolving
Conflict. San Francisco: Jossey-Bass.
Saposnek, D. T. (2004). The Psychology of Divorce. Retrived 6th June 2016 from
http://www.mediate.com/articles/saporo.cfm
Wallerstein, J. S. and Kelly, J. B. (1980). Surviving the Breakup: How Children and
Parents Cope with Divorce. New York: Basic Books.
TABLE OF CASES
Alabi V Alabi (2007) 9 NWLR PT. 1039
Amobi v Nzegwu (2014) ALL FWLR pt 730
Butanhot v Butanhot ,ALL FWLR, Pt 566, (2011)
Hyde v Hyde [L.R.] 1 P. & D. 130 (1886)
Motoh v Motoh ,ALL FWLR, Pt 584, (2011)
Odogwu vs. Odogwu , 2 NWLR ,part 225, (1992)
Okoro v Okoro, ALL FWLR, pt 572, (2011)
Williams v Williams (196601 ALL NLR,P.1775
Biography
Dr. Ndubuisi A. Nwafor has Ph.D International Commercial Law (University of
Stirling, Scotland) and LL.M in International Contracting (Glasgow Caledonian
University). He is presently a lecturer at the Faculty of Law, University of Nigeria
Nsukka. He is interested in research that increases the practicability of
International Commercial Law in Africa.
Dr. Chidozie Edwin Nwafor is a Developmental Psychologist and a lecturer at
Department of Psychology Nnamdi Azikiwe University Awka Nigeria. His Primary
research interest include psychological wellbeing of children and early adults;
theory of mind and behavior development. Ce.nwafor@unizik.edu.ng
