At present, it is not uncommon that once spouses take divergent paths or separate before such separation is recognized in the eyes of the law, some engage in the practice of “arranged divorce”. in order to seal the process of their divorce and/or separation.
The famous Latin maxim “debile fundamentum fallit opus” translates that where the foundation is weak, the whole work crumbles. Conversely, it means that where the foundation is solid, the strength of what is built on it is certain. The same goes for the admirable line of thought of Lord Denning in Macfoy v United Africa Companywhere he held that:
If an act is void, it is legally void. It is not only bad but incurably bad. You don’t need a court order to set it aside. It is automatically null and void without further ado, although it is sometimes convenient to have it declared by the court. And any process based on it is also bad and incurably bad. You can’t put something on nothing and expect it to stay there. It will collapse.
One way or another, the above maxim can be said to have given rise to the age-old principle of “contractual relationship” which generally stipulates that a person who is not a party to an agreement cannot perform it, even if the contract was concluded for his benefit. In Nospetco Oil & Gas Ltd v Oloruninmbe,it was succinctly held as follows:
PContractual reality is the relationship between the parties in a contract, which gives them the right to sue each other, but prevents a third party from doing so. Thus, the doctrine of confidentiality of contract is concerned with the sanctity of the contract between the parties and does not extend to others from outside.
Nor does the Court remain silent on the importance of the principle of privacy, as it states that this is fundamental for the performance of contractual obligations between the parties to a contract. This principle can rightly be extended to marriage. As elementary as it is, marriage remains a kind of contract and the principles of the general contract apply.
The Supreme Court has defined ‘wedding’ in the case Amobi vs. Nzegwu & Ors as following:
“Marriage under marriage law generally means the legal union of a couple as spouses. In other words, it is “the voluntary union for life of a man and a woman to the exclusion of all others”. See Hyde v. Hyde and Woodmansee (1866) LRP&D 130, by Lord Penzance.
By adopting this definition, we would see that marriage is definitely an agreement (voluntary union) between a man and a woman, to be husband and wife. Thus, only two parties are involved in it. To this end, only the parties to this marriage may validly bring an action to assert their corresponding inherent matrimonial rights, including the right to request the dissolution of said marriage. Also, it should be noted that the Marriage Act does not recognize marriage by proxy, so claiming any rights under it cannot be made by proxy. Thus, the only person who can initiate, institute and prosecute a petition for dissolution of marriage must be either the husband or the wife of such a marriage and not by another person.
Giving statutory credit to this position is the express provision of Section 15 (1) of the Matrimonial Causes Actwhich provides for the effect that the judicial doors of matrimonial causes are only open to the parties to the marriage to solicit r concerning the marriage. Section 15(1) is reproduced here:
“A petition under this Act by a party to a marriage for a judgment dissolving the marriage may be made in court by either party to the marriage on the ground that the marriage has broken down irretrievably”.
Note that the word MAY is used in the section, and of course the word may is an empowering word that gives the power to do or not to do an act. We believe that the word may as used, does not entitle anyone outside the marriage to sue or petition on behalf of the parties to the marriage.
A very important precondition for bringing a petition is the mandatory filing of an affidavit of verification by the petitioner, as provided by the rules on matrimonial causes. In Order V Rules 10(1) of the Marital Causes Rulesit is expected that :
“A petitioner must, by an affidavit written on his petition and sworn before the filing of his petition:
- verify the facts stated in his request of which he has personal knowledge; and
- testify as to his belief in the truth of all the other facts stated in his motion. »
This received judicial imprimatur in the decision of the Court of Appeals of Odusote c. Odusote,
“the petition must, as required by the provisions, contain the sworn affidavits of the petitioner before it is or may be duly filed.”
Marriage is not based on power of attorney and cannot be, as far as the Nigerian legal environment is concerned, dissolved by proxy. The essence of the foregoing, therefore, is to prove that in a petition for dissolution of marriage, an affidavit verifying the facts of the petition must be signed and endorsed by the petitioner and not by a third party to the marriage. Thus, when a petition for dissolution of marriage is brought by a non-party to the marriage, or when a non-party to the marriage has signed or endorsed the certificate relating to reconciliation and the affidavit attesting to the facts of the petition, such a request is invalid and, therefore, deprives the Court of jurisdiction to hear the request, notwithstanding the power of the power of attorney granted to a third party.
At present, it is not uncommon that once spouses take divergent paths or separate before such separation is recognized in the eyes of the law, some engage in the practice of ‘arranged divorce” in order to speed up the process of their divorce and/or separation. The practice is marked arranged divorce because either the petitioner or the respondent is arranged, or both parties are arranged, in which case, in either case, the petition is illegal and void because the petition was made by proxy; not having both parties to the wedding.
This practice of arranged divorce was born out of the gap in the law itself, as the law neither specifies nor insists on the identity of the parties. Thus, any person can present himself as an applicant and present himself as the bearer of one of the names appearing on the marriage certificate. In the most sincere way, it has left crumbling marriages and homes that have the potential to be resurrected in a state of rubble that has no glimmer of hope of being rehabilitated. As long as the marriage certificate is admitted by the court and the arranged parties have testified, the court issues its verdict and dissolves the marriage, and the marriage of the original parties has come to an end.
It is recommended that the Matrimonial Causes Act and the Rules relating to matrimonial causes be amended so that the identity of the parties to a marriage can be easily verified and established by the court. It is humbly suggested in this regard that when filing a petition, the petitioner should submit their most recent passport photograph, and also submit with the petition, a copy of their government issued identification such as permanent voter, national identity card, driver’s license or international passport data page or any other means of identification. This will go a long way to curbing the current trend of proxy divorce also known as arranged divorce in Nigeria.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of OM Atoyebi, SAN & Partners (OMAPLEX Law Firm) where he is also the Team Leader of Emerging Areas of Legal Practice.
Mr. Atoyebi has expertise and vast knowledge of the family Law and it has seen him advise and represent his vast clientele in a myriad of high profile transactions. He holds the honor of being the youngest lawyer in the history of Nigeria to be awarded the rank of Senior Advocate of Nigeria.
He can be reached at [email protected]
CONTRIBUTOR: Toheeb Adeagbo, AICMC.
Toheeb is a member of the dispute resolution team at OMAPLEX law firm. He also has commendable legal expertise in family law.
He can be reached at [email protected]
(1961) 3 All ER 1169 to 1172 Same (2022) 1 NWLR (Pt. 1812) 495 SC; See also UBA Plc c. Jargaba (2007) 11 NWLR (Pt. 1045) 247 (Pp. 531-532, para. HA) Same. (2013) LPELR-21863 (SC) (2011) LPELR 9056 Same.