The breakdown of a marriage in some cases has emotional, financial, health, and social consequences for the couple, their children, and their extended families.
One of the critical decisions in a divorce is custody. It matters who a child lives with. For example, a Swedish study found that joint custody protects the emotional well-being of children by reducing their stress levels as it limits the loss of social and financial resources by parents who affect children after divorce. A study of 17 countries south of the Sahara in Africa has shown that living with a father affects the nutritional status of children. This may be due to the inability to effectively manage work-family conflicts.
The laws of most countries clearly set out the rules for custody in the event of divorce. In Nigeria, the decision is based on the marriage causation law. The main focus is on the interest and well-being of the children.
As in many other countries, the secular family laws do not grant men special rights. In many contexts, however, customary and religious norms still prevail that discriminate against women in terms of custody premiums. This is particularly true of several justice systems. Nigeria is one of them: it consists of a Supreme Court, an Appeals Court, a Supreme Court and a District Court, as well as Sharia and Common Courts.
In many of Nigeria’s patriarchal cultures, women bear and raise children, but the children belong to the man. This depends on the overarching principle of common law, which denies a mother’s lineage and strongly supports the patrician line. When the couple divorce, the mother leaves the children to the “owner” – the father. These religious and cultural traditions influence the granting of custody of children in Sharia and common courts.
The rights of children and women have been documented in various treaties and conventions, such as the United Nations Convention on the Elimination of All Forms of Discrimination against Women, the African Charter on the Rights and Welfare of the Child and the United Nations Convention on the Rights of the Child Child and gender policies of the African Union. But patriarchal cultures often violate these rights.
In the first of its kind, we investigated 15 divorce cases in a common court in the Nigerian state of Ekiti. Almost all of them were initiated by the woman, mainly for reasons of neglect or domestic violence. But only one of the custody decisions was in favor of the woman alone. Children’s interests and women’s rights have not been used as the main guide for granting custody.
These results provide useful evidence for intervention and legal reform in Nigeria and other countries with multiple legal systems.
In custody matters, Nigerian Marital Causes Law takes into account factors such as an emotional bond with a particular parent. the degree of familiarity and desires of the child; and adequacy of facilities. The respective incomes of the parties are also considered; whether one of the parties lives with a third party; the age and sex of the child; Opportunities for adequate upbringing; and the behavior of the parties. Post divorce child custody can be shared or shared with one party with the other party visiting. It is not awarded on the basis of who is guilty of the marital offense.
The dominant ethnic group in Ekiti State is Yoruba. All couples in our study were of Yoruba descent and all women were economically active. In traditional Yoruba law, children belong to their father. Although motherhood is revered and reportedly empowering a woman in Yoruba culture, a woman’s custody of one child is limited as long as she is in a union.
Of the 15 cases examined, 12 were initiated by the woman. The reason for the divorce was granted except for two cases.
In contrast to some societies where most divorce petitions are granted through no fault of their own, all divorce cases in this analysis were of fault. The reasons varied depending on the gender. Neglect for the well-being of women and children, poverty and domestic violence were the most common reasons why women divorced. The two men who got divorced gave reasons for disobedience, adultery, and indifference to the children and the man.
In six cases, the man was granted sole custody. Joint custody was granted in five cases. In four of these five cases, custody of the child awarded to the woman was only temporary because the child was a minor or the man had no income. Sole custody of the woman was granted in only one of the 12 cases. This is unlike in more developed countries, where women usually have sole or joint custody.
We found that the man was granted custody in almost all cases, even if the divorce petition was due to the man’s lack of care for the children. This suggests that the child’s interest is secondary under common law. Instead, the main concern is the right of men to have children. This violates the right of women to have their children and the right of children to be cared for. It’s also tacit encouragement to child abuse and neglect.
Culture should not be maintained to the detriment of human well-being. The well-being of children should be the primary reason for granting custody after divorce. The rights of women towards their children are equal, if not greater, to the rights of men. Their right to live with their children should be duly taken into account in all post-divorce custody judgments.
Countries like Nigeria, where traditional models of guardianship and modern legal systems exist, should be careful to ensure that child custody benefits do not endanger children.
Favor Chukwunonyerem Ntoimo, law student, is a co-author of this study.