The Legal Application of ADR in Matrimonial Disputes in Nigeria (Series)

INTRODUCTION

In the immortal words of Shakespeare, the virtuoso literati in his book Henry VI, Part 1, while expounding what marriage is founded on, penned the following:

“For what is wedlock forced but a hell, | An age of discord and continual strife? | Whereas the contrary bringeth bliss, | And is a pattern of celestial peace…” [1]

To this end, the literal giant and poet pointed out that marriage should be an offshoot of a consensual and mutual agreement between couples, for a lifetime rather than a forced relationship. This will foster bliss, harmony and divine peace.

Conversely, marriage can also be an uncomfortable arrangement that even the poet likened to hell. This means that disputes can arise that may bring a marriage to an abrupt end. This end is legally called Divorce. In Nigeria, marriage is so sacred that at the mention of divorce, stigmatization begins.[2] If marriage is thus viewed in the idyllic form brilliantly captured by Shakespeare above, it will be devastating to the parties involved in a marriage, their children, and the society at large, if the marriage is dissolved.

The reality remains that disputes have always been part of the existence of human beings and sadly, it continues to be. Marriage, as sacred as it is, does not defy the possibilities of disputes arising therefrom. Statistics recently show that an average of 30 matrimonial cases are being entertained daily at the Federal Capital Territory (FCT) High Court,[3] lending credence to the frequency of matrimonial disputes.

Whenever there are issues and strife in a marriage, the last resort, having tried other means, is to petition for a divorce or judicial separation. It should be noted that whenever divorce or separation is resorted to, issues of maintenance of parties, their children and custody of children also spring up. The truth remains that where divorce or separation proceedings are instituted in Court, the emotional status of parties are not taken care of.

A problem that has plagued litigation especially when it comes to matrimonial cases, is that the private affairs of couples are brought out to the public as the proceedings are not kept private. Also, due to the rapid increase in divorce cases and the slow process of litigation, divorce proceedings have experienced an unnecessary delay. Generally, litigation in Nigeria is a tiresome process that can be avoided if certain measures are taken. ADR has provided such mechanisms to show that justice and equity can be achieved a lot faster and easier.

For this paper, Collaborative divorce, Divorce mediation and Divorce arbitration are the only alternatives examined. Employing these alternatives in marriage disputes is a more dignified way of making couples, their children and their finances emerge healthily. Emotions are properly taken care of as parties discuss their issues in a friendly atmosphere, rather than employing an adversarial approach as witnessed in litigation. These and many more are obvious indications that ADR has been covering up for litigation in the latter’s areas of shortcomings.

The mainstay of this article is not to encourage the dissolution of marriage or separation of parties to it, but to find amicable solutions in which all parties would be satisfied.

CONCEPTUAL DEFINITIONS

In other to do proper justice to the topic, certain terms should be defined. The terms marriage, matrimonial disputes, and ADR shall be clarified and explained seriatim in the succeeding paragraphs.

Marriage

In Amobi v Nzegwu & Ors,[4] the Supreme Court captured the definition of the word marriage in the following words:

“Marriage under the Marriage Act generally means the legal union of a couple as spouses. In other words, it is ‘the voluntary union for life of one man and one woman to the exclusion of all others.’ See Hyde v Hyde and Woodmansee (1866) LRP&D 130, per Lord Penzance.”

The provision of Section 69 of the Matrimonial Causes Act[5] is also important in this regard. It provides that marriage does not include one entered into according to Muslim rites or other customary law. Thus, any reference to marriage in this article is strict to marriage governed by the Matrimonial Causes Act and includes marriages conducted in a licensed place of worship, a registrar’s office, and marriage under a special license all between a man and a woman.

Matrimonial Disputes

According to Section 114 (1) (a)-(e) of the Matrimonial Causes Act, matrimonial disputes/causes mean proceedings for a decree of dissolution of marriage; nullity of marriage; judicial separation; restitution of conjugal rights; jactitation of marriage; proceedings concerning the maintenance of parties to the proceedings; custody or guardianship of children of the marriage or their maintenance, etc.[6]

Alternative Dispute Resolution (ADR)

ADR refers to a set of practices and techniques aimed at permitting the resolution of legal disputes outside the Courts. It is normally thought to encompass mediation, conciliation, arbitration, and a variety of “hybrid” processes by which a neutral facilitates the resolution of legal disputes without formal adjudication. These alternatives to adjudication are advocated on a variety of grounds. Potential benefits are said to include the reduction of the transaction costs of dispute resolution, because ADR processes may be cheaper and faster than ordinary judicial proceedings; the creation of resolutions that are better suited to the parties’ underlying interests and needs; maintenance of family privacy, and improved ex-post compliance with the terms of the resolution.[7]

APPLICATION OF ADR TO MARRIAGE DISPUTES

There are some shortcomings associated with adjudication in resolving marriage disputes and these shortcomings serve as propellers to finding substitutions. The difficulties posed by litigation to the litigants in gaining access to justice, coupled with the overburdened Courts with little facilities to attend to matters with the deserved alacrity; formalism, lack of privacy, legalism, and excessive costs, are some other factors that have led to the quest for alternatives to the traditional Court system (litigation).[8]

Since the Court process seems to be cruel, anachronistic, and hypocritical,[9] there had to be a better way out. Various alternatives have truly come up and are applied to issues ranging from business to matrimony. This paper examines three ADR mechanisms which are collaborative divorce, divorce mediation, and divorce arbitration.

Collaborative Divorce

Collaborative divorce is a voluntary and facilitative process that allow couples who have decided to end their marriage to work with their lawyers and other family professionals, to achieve an agreement that best meets the specific needs of both parties and their children, thus, avoiding the uncertain outcome of a Court proceeding. This process begins when couples willingly sign a contract called the Participation Agreement before their marriage. Each party is bound by the process and their lawyers are barred from representing them in any future family-related litigation.

This alternative was instigated by Stuart Webb, a Minnesota Family Lawyer in the year 1990 in the United States.[10] He saw that traditional litigation was not always helpful to parties and their families and was often damaging. Since 1990, the collaborative law movement has spread rapidly to most of the United States, Europe, Canada and Australia. It was launched in England in the year 2003.[11]

As part of the collaborative process, both parties retain separate Attorneys and jointly hire other family law experts which there’s a mental health professional, a child specialist, and a financial specialist. The job of these three officials is to settle the dispute, making use of team approach. Parties agree to the effect that neither of them may seek or threaten Court action to resolve the dispute and in a situation where the process fails and parties decide to litigate, the Attorneys must withdraw and the parties must retain new lawyers. This is called the Disqualification provision.[12]

There are many benefits to choosing collaborative divorce over litigation. The collaborative process gives individuals more control over the outcome of their matter, as opposed to leaving decisions about finances and children in the hands of a Judge, who more than likely has an overcrowded Court docket, very little time to devote to each case, and hears only the briefest snapshot of all of the issues that have arisen over the course of a long-term marriage, before making decisions that affect parties. This process also shields the children from participating in the process. By insulating the children from the process, the impact of the divorce on them will be minimized.[13]

Due to the fact that the collaborative process creates the opportunity for a divorcing couple to stay out of Court, clients who choose a collaborative divorce find that they can navigate their divorce and the aftermath with their dignity, and emotional wellness fully intact after the divorce. Most importantly, the collaborative process can shield families, including children, from the impact of increased hostility, distrust, and disdain between two divorcing spouses both during and after the divorce process.[14]

This is the practice in Texas under the Family Code,[15] the whole of the USA, England, and Wales, and Australia. The effectuation in these jurisdictions is due to recognition by law and enforcement of collaborative divorce. For instance, in the USA, the United States of America Model Uniform Collaborative Law Act, 2009 was put in place to allow the use of collaborative law in resolving disputes, and decisions from such resolution are binding. However, it is not in all jurisdictions that collaborative law resolution has a binding effect as it is in the USA. In Nigeria, collaborative divorce is not recognized by law, and if any resolution arises from this kind of proceeding in Nigeria, such is merely persuasive and lacks binding effect.

There is generally no statutory provision regarding substance, practice and procedure for ADR processes in Nigeria aside from arbitration and conciliation which are strictly applicable to commercial disputes.[16] The only method related to marriage dispute is Reconciliation as provided under Section 11 of the Matrimonial Causes Act , which provides that the Court shall always consider the possibility of reconciliation of the parties to the marriage.[17] This is however conditioned on the fact that a petition must have been instituted before the Court can invoke such consideration of reconciliation.

CONCLUSION

To summarize, Collaborative divorce as an ADR method has spread across several jurisdictions since its inception in 1990 by Stuart Webb, including the United Kingdom, Canada and Australia, among others. It serves as a superior alternative to the traditional Court procedure of marital dispute litigation, as it safeguards children’s feelings and interests, maintains secrecy by avoiding public hearings, and provides organized settings that encourage trust and impartiality in negotiations.

REFERENCE

  1. 1 Henry VI, Act 5 Scene 5, lines 62-65.
  2. Azinge Settlement of Disputes: An appraisal of Alternatives to Adjudication in Matrimonial, Chieftaincy and Land Disputes.
  3. < https://www.sunnewsonline.com/worries-as-courts-get-more-divorce-cases/ > Accessed on 16/04/2022
  4. (2013) LPELR-21863 (SC)
  5. Cap. M7 Laws of Federation of Nigeria, 2004
  6. CAP M7, LFN 2004
  7. Mnookin R., ‘Alternative Dispute Resolution’ (2002) Harvard Law School John M. Olin Center for Law,

    Economics and Business Discussion Paper Series, 232

  8. Ayinla L. A, ‘ADR and the Relevance of Native/Customary Arbitration in Nigeria (Africa): A Critique of Its Nature and Allied Legal Issues’ (2010) The Jurist, Annual Publication of Law Students’ Society, University of Ilorin Vol. 14
  9. Stephen M. C., ‘Divorce Reform in England: Humbug and Hypocrisy or Smooth Transition: in Michael Freeman ‘Divorce: Where Next?’ (1996) Dartmouth Publication Ltd
  10. ‘Collaborative Law History’ <https://en.m.wikipedia.org/wiki/Collaborative-law > accessed 4 March, 2022.
  11. Ibid.
  12. Collaborative Law,<http://en.wikipedia.org/wiki/Collaborative_divorce> accessed on 6 April, 2022.
  13. Collaborative Law, <http://family-collaborative-law.com/collaborative-process/collaborative-participation-agreement> accessed on 18April, 2022.
  14. ‘Collaborative Divorce’ <https://www.dasherlawfirm.com/collaborative-divorce-law.html/> accessed 16 April, 2022; ‘Divorcing without going to court’ <http://www.lamonitorcom/content/divorcing-without-going-court> accessed 16 April, 2022.
  15. Texas Family Code 2005, Chapter 6 Subchapter G § 6.603.
  16. Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria.
  17. Matrimonial Causes Act, CAP. M7, LFN 2004

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