The Use and Abuse of Divorce Laws 

Gratitude 

In all things, one must always give thanks to God. As I turn 58 today, I thank God Almighty and my beloved Parents, late High Chief Omowale Kuye OFR, Otun Olubadan of Ibadanland (I pray that Allah has granted him the highest level of Jannah) and Dame Priscilla Kuye, for my life. Indeed, it is a blessing to have a publication on my birthday, and I thank my dear Publisher, ‘Duke’, Prince Nduka Obaigbena, for this opportunity. I thank my children, my MD, Eniola Bello (Eni B), and my indefatigable Deputy Editor, Jude Igbanoi, for their unceasing and invaluable support. And, I thank you my faithful readers, for your comments and criticisms, and your encouragement which constantly spurs me on. I am truly grateful.

International Forum Shopping

It’s interesting how Nigerians like to run home, when they have issues that concern the law abroad. Sadly, the only reason they elect to do so, is because here, in Nigeria, they know that they are able to get away with things which they cannot get away with in other countries. The other day, I gave the example of the Ekweremadus’ case, in which organ donation for a fee is nothing more than a misdemeanour in Nigeria (see Section 53 of the National Health Act 2014), but is a serious felony in the UK, where a convict can face up to life imprisonment (see Sections 2-5 of the Modern Slavery Act 2015 Chapter 30). Even an issue as mundane as costs; our courts here have a penchant for awarding unreasonable costs like N100,000 and the like, knowing very well that N100,000 is nothing more than a token, as unrealistic as they come, and not commensurate to the costs incurred by the person they are awarding it to. 

It is high time that within our legal system, these things, including our cost award regime, start to change. We complain that our court system is clogged up, and the the wheels of justice turn ever so slowly; but, if litigants and Lawyers realise that they will pay N20 million costs and the like for filing frivolous cases which constitute nothing more than an abuse of court process, and the Lawyers who have filed such useless cases will face the Legal Practitioners Disciplinary Committee and/or be unable to practice until the costs awarded against them and their clients are liquidated, people will think twice before they run to court to file nonsensical cases.

Similarly, in the case of divorce, I have seen women run to the UK to take up residence there for a while before they file for divorce over there, instead of remaining in Nigeria where they married and lived throughout, because when it comes to divorce settlements, Nigerian courts are known to be mean to womenfolk. This is not a good report for Nigeria – the perception of a chauvinistic divorce legal system, mostly skewed in favour of men. See Section 42(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) and Anekwe & Anor v Nweke (2014) LPELR-22697(SC) per Olukayode Ariwoola, JSC (now CJN). Under our Matrimonial Causes Act 1970 Part IV, the powers of the court to make orders for maintenance and settlement are vague, wide and discretionary on the part of the court; there are no strict rules of division of assets, just what the court considers to be just and equitable in the circumstances of the case. So, some Nigerian women therefore, go to the UK, because their husbands may own property there and they hope to get a share of it, and to also secure a generally fairer divorce settlement than they are likely to get in Nigeria, where the court could even say that it lacks jurisdiction over properties in the UK, even if they constitute community property. 

This temporary arrangement of running to UK to seek maybe a fairer divorce settlement or simply to get justice, or coming home to Nigeria to avoid settling a spouse fairly in a divorce, is called International Forum Shopping. In Ugo v Ugo (2017) LPELR-44809 (SC) per Ejembi Eko, JSC, the Supreme Court held that a husband who came to take up divorce proceedings in Nigeria even though he and his wife were domiciled in USA, was guilty not only of “international (forum) shopping, which is an aspect of abuse of court process”, and the Nigerian court lacked jurisdiction. In these circumstances, such Petitioners cannot be said to be domiciled where they have run to, simply to seek a better divorce deal.

Community Property & Equitable Distribution 

While I don’t believe in this latest trend of women marrying well-to-do men only to turn around to seek for divorce after a few years, and then ask for half of everything the man owns, I do believe in equity and fairness. And, just as our regime of cost award seems to still be lagging behind in the dark ages, so also does Nigeria’s divorce settlement regime. For instance, a housewife in Nigeria, is not considered to have particularly contributed to community property. This should not be so. Additionally, once the Nigerian court makes the man responsible for the upkeep of the children, everything else may depend on the benevolence of the man and the court; the wife doesn’t necessarily get what should really come to her. This must change.

It is therefore, not surprising to find a man who is domiciled in USA running back home to Nigeria to divorce his wife, since he would rather not part with anything significant in a divorce settlement under the more costly American community property sharing (there are nine States in USA including California and Nevada, who practice this) or equitable distribution (all other States in USA) options, depending on which State you are domiciled. In the community property States, the law recognises community and separate property, the former being the property, income and assets acquired by either spouse or both during the subsistence of the marriage, and the latter belonging to one spouse, being that which was acquired before marriage or after the separation. In community property States, this means that community property may be shared on a 50/50 basis. In equitable distribution States, the court divides the assets accumulated during the marriage equitably, but it doesn’t have to be equally. Where one spouse seeks to hide property acquired during the subsistence of the marriage from the other to avoid sharing it with the other, the court may punish the party who hides assets, by awarding the spouse a higher proportion of it. 

Unfortunately, in Nigeria, we do not seem to have reached the stage where there is a proper asset sharing formula for the purposes of marriage and divorce, let alone that of any equity in sharing same, in the event of a divorce. 

Prenuptial Agreement 

These days, couples abroad enter into a ‘Prenup’, that is a prenuptial agreement, which is a contract made between a couple before marriage, on how income, assets, liabilities etc will be divided in the event of a separation or divorce. A prenup includes all the issues that form the subject-matter of disputes in court between divorcing couples – division of property, custody of children, spousal and child support, inheritance, which law governs the marriage etc. 

Domicile

An individual has a Domicile of Origin, which is inherited from his/her Father. Then one has their Domicile of Choice, which is simply the place where an individual permanently resides. In Ugo v Ugo 2008 5 N.W.L.R. Part 1079 Page 1 at 25 per Adekeye JCA (as she then was), the Court of Appeal held thus: “A domicile of choice is a domicile established by physical presence within a State or territory, coupled with the intention to make it a home”. It behooves the court to also look at the intention of a person who jumps from one place to another to seek a  divorce; and certainly, taking up residence with the intention of avoiding a fair divorce settlement elsewhere, doesn’t constitute the kind of intention the court was referring to when it said “intention to make it a home”. Also see the case of Omotunde v Omotunde 2001 9 N.W.L.R. Part 718 Page 252. Domicile of choice replaces the domicile of origin in a sense, at least for divorce proceedings, in order to establish the divorce jurisdiction. 

To be clear, in Koku v Koku 1999 8 N.W.L.R. Part 616 Page 672 at 680 per Onalaja JCA the Court of Appeal held that “Domicile, succinctly put, is the permanent abode of a party, whether he goes to the North, South, East or West, he would return to the place” – the operating word here, I would say, being ‘permanent’. An online definition of Domicile states thus: “The country that a person treats as their permanent home, or lives in and has connection with”. A make-shift arrangement, made for convenience of obtaining the type of divorce settlement you desire and nothing else, cannot by any stretch of the imagination, be said to be the permanent that is contemplated in Law. It is important to note that, you can only have one domicile at a time. See the England and Wales Court of Appeal case of Kelly v Pyres [2018] EWCA Civ 1368.

Can one then claim that because their domicile of origin is Kaduna, though their domicile of choice is New York where they have resided throughout their marriage with their family and all the properties they own but one in Kaduna, are all located in New York, they are domiciled in Kaduna for the purposes of a divorce, also because they may plan to retire to Kaduna in their old age? I think not. In any case, the burden of proof will be on the man claiming that Kaduna is his domicile and not New York, to prove same. His home and work address in New York for the past 20 years, business or shares owned there, paying his taxes there, his family living there, children going to school there, membership of a Church or Mosque Parish in New York, all point to the fact that such a person is permanently resident/domiciled in New York, and not Kaduna. 

Someone mentioned that it is the domicile of the man and not that of the woman, that is important in a divorce case. Poppycock! This is such a discriminatory statement (again, see Section 42(1)(a) of the Constitution), and is not true. The matrimonial domicile, counts, and not just that of the man. 

Conclusion 

In order to show that a country is developing, it is necessary that its legal system is seen to adhere to international best practices, as opposed to being perceived as one that people, especially its citizens, can escape to, to unfairly and undeservedly secure a softer landing, or to simply avoid the law taking its course. This is not the type of optics that any serious country needs, especially one that seeks to attract a sizeable amount of FDI.