Divorce Proceedings By Proxy: Need To Flash The Red Card

By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

In the present times, it is not uncommon that once spouses go their divergent ways, or are separated before the recognition of such separation in the eye of the law, some do engage in the practice of ‘arranged divorce’ in order to fasten up the process of their divorce and or separation.

INTRODUCTION

The famous Latin maxim “debile fundamentum fallit opus” translates that where the foundation is weak, the entire work collapses. This conversely translates that where the foundation is strong, the strength of what is built upon it is certain. The same was the admirable line of thought of Lord Denning in Macfoy v. United Africa Company[1] where he held that:

If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of a court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.[2]

In one way or the other, the maxim above can be said to have birthed the age-long principle of “privity of contract” which stipulates generally that a person who is not a party to an agreement cannot enforce the same, even if the contract was made for his benefit therefrom. In Nospetco Oil & Gas Ltd v. Oloruninmbe,[3] it was succinctly held as follows:

Privity of contract is the relation between the parties in a contract, which entitles them to sue each other, but prevents a third party from doing so. Thus, the doctrine of privity of contract is all about the sanctity of contract between the parties to it, and it does not extend to others from outside.[4]

The Court is also not silent on the importance of the principle of privity, as it states that same is fundamental to the enforcement of contractual obligations between the parties to a contract. This principle can be rightly extended to marriage.  As elementary as it can be, marriage remains a specie of contract and the principles of general contract apply.

The Supreme Court defined ‘marriage’ in the case Amobi v. Nzegwu & Ors[5] as follows:

 “Marriage under 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.”

Adopting this definition, one would see that marriage is definitely an agreement (voluntary union) between a man and a woman, to be husband and wife. Thus, only two parties are involved thereto. To this end, only parties to this marriage can validly bring an action to enforce their corresponding inherent matrimonial rights, including the right to seek the dissolution of such marriage. Also, it should be noted that the Marriage Act does not recognise a marriage by proxy, so, the claim of any right therefrom cannot be by proxy.  Thus, the only person that can commence, institute, and prosecute a petition for dissolution of marriage shall be either the husband or the wife of such marriage and not by any other person.

Giving statutory credence to this position is the express provision of Section 15 (1) of the Matrimonial Causes Act, which provides to the effect that the judicial doors of matrimonial causes are only open for parties in the marriage to seek r regarding the marriage. Section 15(1) is hereby reproduced:

“A petition under this Act by a party to a marriage for a decree of dissolution of marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.

It is noted that the word MAY is used in the section, and of course, the word may is an enabling word that gives the power to either do or not do an act. It is our submission that the word may as used, does not give the right to any person outside the marriage to sue or institute a petition on behalf of the parties in the marriage.

A very crucial pre-requisite for instituting a petition is the compulsory filing of a verifying affidavit by the Petitioner as provided under the Matrimonial Causes Rules. In Order V Rules 10 (1) of the Matrimonial Causes Rules, it is provided that:

“A petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed-

• verify the facts stated in his petition which he has personal knowledge of; and
• depose as to his belief in the truth of every other fact stated in his petition.”

This has been given a judicial imprimatur in the Court of Appeal decision in Odusote v. Odusote,[6]

“the petition must as a requirement of the provisions, contain the affidavits sworn to by the petitioner before it is or can be properly filed..”[7]

Marriage is not founded on a proxy basis, and cannot be, as far as the Nigerian legal atmosphere is concerned, dissolved by proxy. The essence of the foregoing therefore is to prove that, in a petition for dissolution of marriage, an affidavit verifying the facts of the petition should be executed and endorsed by the petitioner and not a non-party to the marriage. So, where a petition for dissolution of marriage is commenced by a non-party to the marriage, or where a non-party to the marriage executed or endorsed the certificate relating to reconciliation and affidavit verifying the facts of the petition, such a petition is invalid and accordingly, robs the Court of the jurisdiction to entertain the petition, notwithstanding how powerful the power of attorney granted a third party is.[8]

In the present times, it is not uncommon that once spouses go their divergent ways or are separated before the recognition of such separation in the eye of the law, some do engage in the practice of ‘arranged divorce’ in order to fasten up the process of their divorce and or separation. The practice is tagged arranged divorce because either the Petitioner or Respondent is arranged or both parties are arranged in which case, either way, the petition is illegal and void as the petition has been done by proxy; not having the two parties to the marriage therein.

This practice of arranged divorce came to be as a result of the lacuna in the law itself, as the law does not provide or hammer on the identity of the parties. Thus, anybody can present him or herself as the petitioner and present him/herself as the bearer of one of the names on the marriage certificate. In the sincerest way, this has put marriages and crumbling homes that have the potential of being resuscitated in a state of debris that does not have any ray of hope to be revamped. As far as the marriage certificate is admitted by the Court, and the arranged parties have given their evidence, the Court gives its verdict and dissolves the marriage, and the marriage of the original parties has reached its very end.

CONCLUSION / RECOMMENDATION

it is recommended that the Matrimonial Causes Act and the Matrimonial Causes Rules be amended to the effect that the identity of parties in a marriage can be easily verified and ascertained by the Court. It is humbly suggested in this regard that on filing a Petition, the petitioner must file his or her most recent passport photograph, and also file along the Petition, a copy of his or her government-issued means of identity like the Permanent Voter’s Card, the National Identity Card, Driver’s Licence, or the data page of his/her International Passport or any other means of identity. This will to a large extent, curb the current trend of divorce by proxy also known as arranged divorce in Nigeria.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and vast knowledge of Family Law and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Toheeb Adeagbo, AICMC.

Toheeb is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Family Law.

He can be reached at toheeb.adeagbo@omaplex.com.ng.

[1] (1961) 3 All ER 1169 at 1172

[2] Ibid

[3] (2022) 1 NWLR (Pt. 1812) 495 SC; See also U.B.A. Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) 247 (Pp. 531-532, paras. H-A)

[4] Ibid.

[5] (2013) LPELR-21863 (SC)

[6] (2011) LPELR 9056

[7] Ibid.

[8] <https://thenigerialawyer.com/can-a-petitioner-validly-commence-a-petition-for-dissolution-of-marriage-by-proxy-for-example-by-an-attorney/> Accessed on 19/09/2022