{Benin City, Nigeria Local Time}
Bookmark and Share

Settlement Of Marriage Disputes And Divorce Under Edo Native Law And Custom

Last Update (July 9, 2020)

The original idea of marriage for ever, till death separates, is a principle which Benin people.(Ivbi-Edo) believe in, hence the adage states:
EBE NO DE FI UHEAME EVBA O KEKE YI Meaning: “The leaf that plucks from the parent plant and falls into a watershed (re-ceptacle), by the side of the plant will decay there and remain there forever!”

Another proverb in Benin says: AIRH’IE OMO Y’ORONMWEN N’AWE RHERHE REE Meaning: “You do not give out a daughter for marriage and bid her ‘see you back soon ‘... or ‘till you return ‘!”

Marriage is therefore a lifelong affair between a man and a woman hence customary law in Benin requires the payment of bride price to the FAMILY once and no more for a female child. It follows therefore that dissolution of marriage is not to be taken lightly, hence there, are resorts in Benin custom to various levels of settlement of disputes arising from marriage. First, the immediate family members are empowered to bring about early settlement of any rifts and the extended family members may be called in, if the preliminary steps fail. So, efforts are made to keep the union alive until. The marriage breaks down “irretrievably”. This is even a requirement under the English Law and the Matrimonial Causes Act (1990), for dissolution of marriage.
Divorce under Edo native law and custom
“The Groundwork of Nigerian Law” by Dr. T.O.Elias as follows.
“Under ancient customary law, marriage was almost always indissoluble as it has looked upon as a permanent social and spiritual bond between man and wife on the one hand, and their respective families on the other hand”

The above observation holds good under customary law, in Benin and this has been further expatiated upon by professor Akintunde Emiola on page.77 of his book “PRINCIPLES OF AFRICAN CUSTOMARY LAW” as follows:
“divorce was not a conventional method of dissolving a traditional marriage . . . . ., prolonged separation do sometimes occur as a result of disagreements but they hardly end in the final breakup of the marital bond. But if the conduct was grave . . . the family of the husband would normally be brought into the matter and if the woman was found guilty, the husband’s request for divorce or separation was endorsed by the family.”

It is important therefore to examine and categories some of the grounds on which formal dissolution of marriage under customary law may be based according to the custom or tradition of Benin people (Ivbi-Edo).

Under the Benin Customary Law and Practice, the following grounds are recognized for dissolution of marriage. These include:

Lack of consent of the girl, or forced marriage lack of consent of the family, nonpayment of Bride Price, adultery, desertion, cruelty,  inability to perform the sexual act or impotence, lack of consummation of marriage; leprosy insanity and demise of the husband.

In spite of this recognition, settlement may still be allowed out of due court processes when honest efforts are made for such settlements It will be necessary to focus on some of the grounds for prayers for dissolution of a customary marriage in Benin kingdom. -

As Customary Law recognizes polygamy and by extension, concubinage by the husband, it is only the woman that can commit adultery in that regard. The exception to this rule is when the husband commit adultery with a close relation of the wife, in which case the wife can sue as such is against tradition and custom of the land. Otherwise, the husband is generally eligible to file an action for divorce based on adulterous acts, but the woman is not so generally privileged in this regard, due to the nature of the custom and tradition which allows! The man to be polygamist
For the husband to succeed on the ground of adultery there must be proof, inter alia, of a subsisting marriage and this must include the payment of Bride Price as an essential ingredient.  There is however, provision by tradition for appeasement process reparation, or settlement by the family and such processes could be explored to avoid judicial divorce Proceedings.

A man and a Woman may be living together under the notion that there has been some kind of arrangements for marriage. There might have been presentation of gifts, but payment of the stipulated Bride Price among other essential processes. Irrespective of the so-called “Marriage of On convenience» being blessed with children, there is no valid marriage under the customary law system and the purported Marriage may be dissolved if appropriate action is taken by either party. In that case, Marriage, AB INITIO, was not properly contracted as laid down under Benin customary law. Several cases of this nature have come before the customary Courts in Benin land in Edo State of Nigeria for counsel to cite in appropriate manner in support of their cases.

It is a cardinal principle and requirement for Customary Marriage in Benin to receive the consent of the Bride’s parents and family irrespective of the age of the girl being proposed. If there is no family consent, no one will be available to receive the Bride Price and if there is no Bride Price, there is no valid marriage among other basic requirements.

A marriage according to Benin Customary Law can be dissolved by the customary Court where either party to the purported  marriage did not consent to the union or where there Was no consummation of such a marriage i.e. where the man and the woman did not live together and perform as husband and wife. In Sadiaye Osaniwonyi V. Itohan Osamwonyi (1 973) INMLR 25, the Benin High Court held that the consent of the woman and cohabitation by the parties were essentials to a valid customary marriage under Benin Customary Law. The Supreme Court upheld the decision and specifically held as follows:-’

(i) That under Bini native law and custom, a daughter could not be married off to a man by her parents without her consent.

(ii) That payment of dowry (bride price) alone does not constitute marriage under Bini native law and custom .There must be cohabitation as well

(iii) That in order to invalidate a marriage celebrated under the Marriage Act on the ground that at the time of the aforesaid marriage, there was marriage under native law  and Custom by one of the parties still subsisting, that marriage under native law and custom must be proved with a high degree of certainty.

Some of these issues re-echoed in Saka Lawal-Osuia V Lydia Lawal Osula (1 993)2 NWLR (jt274)

If a part to a Marriage deserts his or her matrimonial home and this can be proven for up to a reasonable period, this might be solid ground for seeking the dissolution of the marriage. An example may be that a man may refuse to have anything to do with his childless wife for a year or two. The woman may therefore bring an action for dissolution of the marriage even though the husband did not physically pack out of the matrimonial home but he cased having relations with the wife for such a long period without which procreation will not be possible.

Action for divorce May arise on this ground if a party causes danger or bodily harm to the other, or to the children of the marriage or relation of the parts Culpable neglect during pregnancy or after childbirth is a serious matter under Benin customary law as the main purpose of marriage is for procreation. On this or similar grounds, an action for divorce may be instituted in the Customary Court of the land, having: appropriate jurisdiction.

Benin custom says there is need to thoroughly carry out discreet investigation before marriage is contracted. If after marriage, one party contacts serious illness, action for divorce on this ground may not necessarily succeed as each party has to endeavor to assist the other in time of such difficulties as illness may occur the circumstances, including the type, the length and seriousness of the illnesses, the welfare of the children, etc, will be taken into account by the Customary Court in granting any prayers dissolution of such a marriage

Benin customary law recognizes marriage by inheritance although the practice is dying out In the event of the death of the husband— which in most cases, does not automatically dissolve the marriage, action may be taken for withdrawal if the woman, good grounds, declines to be inherited by the son or member of the family of the deceased husband so nominated.

On any of the above stated grounds, or other miscellaneous accounts, if well established, the customary court may grant a divorce.

It is worthy of note as stated before, that customary marriage is not dissolved by the mere fact of desertion or voluntary separation. Bride Price must be refunded. In Edebiri y. Osagie (1964) M.N.L.R. 95, it was pointed out that a unilateral refund of the bride price by the woman in court was not sufficient ground for divorce under Bini customary law. To Constitute legal divorce; one has to take an action in the native court (now Customary Court) or call members of both families together at a meeting in which the bride price will be refunded  to the husband.

Summarizing and analyzing returns of the questionnaires received, the consultations and discussions held t various levels, the grounds on which a Customary Court would dissolve a marriage may include any of the following:

(a) Impotence or sterility on the part of the husband or sterility on the part of the wife, since the main object of marriage is the procreation of children.

(b) Cruelty on the part of either spouse, especially where this is accompanied by repeated acts of violence.

(c) Excessive meanness by the husband towards his wife or her maiden family.

(d) PROVEN Indolence of either spouse, since this will not be conducive to the proper care and maintenance of the children that may be produced from the marriage.

(e) Adultery by the wife, especially if repeated, as this would be an indication of moral bankruptcy.

(f) Incest by either spouse, especially where this is committed with a member of the innocent spouse’s family; the offending spouse is then considered far too defiled to continue cohabiting with the other spouse without incurring the wrath of the ancestors.

(g) Addiction to serious crimes (e.g. robbery, poisoning, drugs, murder: or gangsters) since criminal proclivity is believed to run in some families.

(h) General disease contacted by either party from the other or a contagious disease affecting one but kept away from the other before the marriage.

The requirements of a valid marriage according to the custom and tradition of the people of Benin (Ivbi-Edo) are substantially the same with many other Nigerian cultures. The basic elements can be summarized under six headings as follows:

(i) Betrothal or engagement ceremony

(u) Consent of the parties and their parents

(iii) Capacity and maturity of the parties

(iv) Payment of Bride Price               

(y) Solemnization, and

(vi) Consummation of the marriage for procreation

These Processes already discussed are not just fun and entertainment. The absence of any of them raises doubts or the validity of a marriage carefully packaged in accordance with Benin customary law and procedure.

Comment Box is loading comments...