Whether divorce proceedings are different for marriages contracted traditionally, under Islam or under Christianity [NGA32693.E]

Articles by Ayode V. Atsenua and E.N.U. Uzodike, which appear in women in Law (1993) deal with marriage and divorce in Nigeria. There are two kinds of law in Nigeria: "customary law and Nigerian Common Law ... furthermore, the Islamic or Sharia Law System is presently regarded as customary law" (Women in Law 1993, 117). Atensuwa also states that "most marriages are still conducted under customary law only but for the urban/educated women, marriages are usually conducted under the Marriage Act and the traditional rites are also conducted" (1993, 118).

According to Uzodike, "Customary law entitles a woman to the provision of a home by her husband. Her right to remain in such home however, subsists only as long as the marriage lasts " (Uzodike 1993, 302). Uzodike also explains a woman's rights upon divorce under Nigerian laws:

On divorce, a married woman loses the right to be provided with a home by her husband and she is thus required to vacate the matrimonial home. This will occur whether or not the husband's family gives her temporary custody of very young children. She is expected to return to her family or to find alternative accommodation. The concept which obtains in English and other developed systems of Law that in appropriate cases, the husband may be ordered to vacate the matrimonial home or be ordered to allow the wife and children to remain in it, has no place under customary law.

Moreover, section 69 of the Nigerian Matrimonial Causes Act expressly excludes the application of its provision on maintenance and settlement of property to spouses married according to Muslim rites or customary law. Similarly the Supreme Court has also held that the Married Women's Property Act does not apply to spouses of these marriages.

Under customary law of most of the Ibo tribe, a woman is entitled on divorce, to remove all her personal properties acquired with her own money and out of her sole efforts and also such properties which she brought into the matrimonial home at the time of the marriage. She cannot however take away property given to her by her husband which he intended her only to use in the matrimonial home. She is not entitled to lay claim on any landed property whether or not such property was acquired through the husband's sole effort or through their joint efforts. Moreover neither the customary nor superior courts have jurisdiction to order the sharing of the property or a settlement of property for the benefit of either party. The irrebuttable presumption is that the whole landed property belongs to her husband. She is regarded as her husband's property and consequently what she acquires belongs to him...

With respect to Islamic divorce it occurs in stages. The husband while divorcing his wife should leave room for possible reconciliation. In the early months of a divorce however (that is during the waiting period or Iddah) she can still claim the right to be housed by the husband but her right ceases if after the expiration of this period no reconciliation is effected. She will however be entitled to a gift from the husband to console her. It is not clear whether this right is enforced but it is clear that a claim to a share of the husband's estate on divorce is totally out of the question (1993, 307-309).
Country Reports corroborates the above information and states that the "dualistic nature of the legal system complicates the issue of women's rights...couples often marry in both civil and traditional ceremonies, creating problems in determining which set of rules applies to the marriage and to subsequent questions of child custody and inheritance in the event of divorce or death" (1998, 1999, 410).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please see the list of additional sources consulted in researching this Information Request.

References


Women in Law. 1993a. Ayode V. Atsenuwa. "Women's Rights Within the Family Context: Law and Practice." Edited by Akintunde O. Obilade. Baton Rouge: Southern University Law Center and Faculty of Law, University of Lagos.

Country Reports on Human Rights Practices 1998. 1999. United States Department of State. Washington, DC: United States Government Printing Office.

Women in Law. 1993. Uzodike, E.N.U. "Women's Rights in Law and Practice: Property Rights." Edited by Akintunde O. Obilade. Baton Rouge: Southern University Law Center and Faculty of Law, University of Lagos.

Additional Sources Consulted


Africa Confidential [London]. June 1998-June 1999.Vols. 38-39.

Africa Research Bulletin: Political, Social and Cultural Series [Oxford]. June 1998-December 1998. Vol. 35. Nos. 6-12.

Keesing's Record of World Events [Cambridge]. June 1998-April 1999. Vols. 44-45.

West Africa [London]. June 1998-January 1999. Nos. 4192-4201.