Family law

Alimony – the Wages of Sin.

It is heartbreaking enough that a couple goes through a divorce. However, when the financially capable partner is saddled with the responsibility of providing monetary support and financial assistance to his or her ex-partner, it becomes a new case for the law to interject its power. Usually, the receiving spouse must be unable to support themselves independently to qualify for sustenance from their ex-spouse.

The Matrimonial Causes Act, LFN 1990 (the Act), which is the primary piece of legislation governing matrimonial matters in Nigeria, makes provision for alimony payments to be made. The term “alimony” is not used in the Act; instead, the term “maintenance” is used to describe the payment of an allowance to a spouse during or after the divorce. The Nigerian courts have been known to use the terms interchangeably, implying that they refer to the same thing in some instances.

When a party files for divorce or seeks other matrimonial relief in Nigeria, one of the ancillary reliefs available is maintenance- also known as alimony. The Matrimonial Causes Act provides that an order for maintenance can be made in respect of parties to either valid or void marriages, but that it does not apply to marriages entered into under Muslim rites or other customary law. In general, Part IV of the Matrimonial Causes Act provides for the making of orders for maintenance, custody, and settlements in favor of a husband or wife as well as for their children or adopted children from previous marriages in the event of a divorce.

The purpose of alimony is to mitigate any unfair economic consequences of a divorce by providing a continuing source of income to a spouse who does not earn a living wage or who earns a lower wage than the other spouse. Part of the justification is that an ex-spouse, typically a woman, may have chosen to forego a career to support the family and requires time to learn job skills to support themselves.

Statistics do not portray what percentage of legally divorced couples are beneficiaries of this ‘Maintenance’ statute in Nigeria. This is because Nigerian courts do not encourage divorce and because judges have the authority to order that couples explore various forms of reconciliation before granting the application It is not uncommon for the process to take years from the date of the initial application to the date of the final decree absolute. Simply put, it is not uncommon for proceedings to take more than eight years.

Because of the independence granted to judges in determining divorce settlements, we have developed a culture of blame in Nigeria. As a result, the party who is deemed “responsible” for the breakdown of the marriage will be penalized for failing to uphold the marriage vows.

This has caused the party wishing to file for divorce to strategize before taking the first step; gathering the necessary evidence to strengthen their case before proceeding (i.e., text messages, photographic evidence, voice recordings, video evidence, etc.).

The courts have now developed a tendency to look into the marriage to determine who was at fault, thereby determining who should suffer the greatest financial loss in the event of a separation or divorce.

In Nigeria, the Matrimonial Causes Act appears to be written in terms of what the party seeking support walks away with and how long it takes them to walk away from the relationship, rather than the other way around. This is largely determined by the judge who is hearing the case. It is only unfortunate if a spouse cannot afford to retain the services of an excellent attorney.

Although the court has discretion in granting maintenance orders, the following factors tend to be considered: – the nature of the relationship between the parties;
• The social standing of the parties and their lifestyles;

• The respective means and earning capacity of the parties;

• The age of the parties;

• The conduct of the parties during the marriage; and

• The existence and the number of children.

Several cases uphold the principles that guide the courts in the granting of maintenance orders. Though, the extent of the maintenance awarded (whether it is for the life of the party claiming maintenance or for a specified period) is entirely up to the discretion of the court. During the interpretation of the Act, the judge is only limited to what he has determined to be just and equitable. Nevertheless, the test for what is just and equitable is dependent on the circumstances that have been interpreted by the judge as surrounding the application and revolving around it.

A remarkable fact is that, in the vast majority of cases, maintenance orders are terminated upon the remarriage of the party who was granted the maintenance order, and that the obligation to provide spousal support is completely distinct and separate from the obligation to provide support for any children born of the marriage. Maintenance orders in the case of children are typically valid until the child reaches the age of 21. However, if the child has a disability or special need, the order may be extended indefinitely as well.

It is important to note that the Act of Maintenance is not a punitive order or one that seeks to share a spouse’s fortune, but rather one that is granted to maintain the standard of living one has become accustomed to as far as possible, and as such maintenance will ordinarily not be granted if the spouse claiming this relief has sufficient means and income to support himself or herself, and as such the applicant’s earning capacity is an important determining factor.


About Theo Ekah

Theo Ekah, a Nigerian, is a seasoned writer, poet, and blogger who is best known for writing short African fiction stories which have been featured on Kalahari Review, and attracting readers of interest-mostly melancholic readers. She also writes non-fiction, on subjects ranging from personal opinions to constructing abstract imaginations with words. She enjoys nature and telling stories. In her free time, she is a confidential listener and a gardener. You can follow her on Twitter @theodora_ekah.