What Happens After A Divorce ?

 

For the typical Nigerian, after the word “divorce” is uttered, it’s followed up with a resounding “God forbid!”

Basically, no one likes to talk about the subject and for obvious reasons- it’s sensitive and culturally unwelcomed, but getting a divorce has several legal implications that everyone ought to be aware of.

Picture a couple that has a child, jointly shared properties, a joint bank account, the same surname, and the list goes on.

If their marriage gets dissolved, questions would arise such as;

• Who keeps the child?
• What happens to the jointly owned properties and money?
• Can they retain the same surnames?

We’ll provide a legal perspective to each of these questions.

Who keeps the child?
When a couple with a child separates, the Court has the power to determine which of the child’s parents would be given the right to the care and maintenance of the child. This right is referred to as Custody.

The Matrimonial Causes Act provides for the discretionary power of the Court to grant custody of the children to any of the parents, after a divorce has taken place.

In exercising this discretion, the court primarily considers the interest of the child. Therefore, the parent who gets custody of the child is typically the one whom the court is satisfied is in the child’s best interest.

How would the court determine this? The court would take into consideration certain factors namely:

The age and gender of the child – generally, very young children are usually left in the care of their mothers but in circumstances where it would not serve the interest of the child to do so, the court will decide otherwise.

Welfare of the child – Any party seeking custody of a child is required to set out the proposed arrangement for the welfare and upkeep of the child. This includes accommodation, feeding, education, the safety of the child, as well as the happiness and psychological well-being of the child. The court will consider the arrangements proposed by each parent to determine which of them best caters to the child’s interest. The fact that one parent is in a better financial position than the other does not guarantee custody. What the court considers is the sufficiency of the welfare arrangement proposed and not which arrangement exceeds the other.

Conduct and lifestyle of the parents: The court will consider whether any behavioral pattern, conduct or lifestyle choice of any of the parents may negatively affect the well-being of the child. For instance, if any of the parents has a drinking problem or is violent, the court may consider how such conduct or lifestyle choice may possibly affect the child’s well-being.

The parent that is currently in custody: If a child has already been in the custody of one of the parents for a considerable period of time, the court may order that custody remains with the parent already taking care of the child, in order to prevent any psychological harm that the change of custody might warrant to the child.

The child’s preference – the court may privately interview a child who appears to be capable of expressing himself/herself and may give him/her the option of determining the parent they wish to stay with.

If the child was born out of wedlock: A mother has a right to the custody of a child born out of wedlock to the exclusion of the natural father of the child. For a father to be awarded custody in such circumstances, he must establish that the mother is unfit to look after the child.

Joint custody
Custody is not always exclusive to just one parent, the Court may grant joint custody which involves both parents sharing the responsibility and authority with respect to the child.

Usually this would involve the child being rotated between both parents for an agreed period of time and each parent would enjoy the privilege to visit. Before an order for joint custody is made, the court must ensure that the parents would cooperate with each other, otherwise, it would be an order in futility.

What happens to the jointly owned properties and money?

The first thing to consider when determining how jointly owned properties would be distributed between a divorced couple is whether or not there is a prenuptial or postnuptial agreement between the couple.

A prenuptial agreement (aka prenup) is a contract entered into by a couple before their marriage, which spells out how properties would be divided between them in the event of a divorce or death.

A postnuptial agreement is essentially the same thing but it is entered into by the couple, after their marriage.

Where a couple had earlier signed an agreement, the terms of the agreement would determine how the properties would be shared.

In the absence of an agreement, the general rule for the division of properties between divorced couples is that all properties acquired by the couple, whether jointly or individually, are to be collated and divided equally between them.

This only includes properties acquired during the marriage such as real estate, cash or money in bank accounts, stock/bonds, cars and other valuables. All other properties owned by a spouse before entering into the marriage are presumed to be personal and separate, belonging to just that one spouse unless the couple agreed prior that every personal property acquired before the marriage is to become a joint property.

Moreso, separate property can turn into a joint spousal property if it gets mixed up with joint property; for instance, if money in a spouse’s separate account is transferred into the couple’s joint account, all the money in the joint account is then presumed to be jointly owned.

How is the distribution done?
The distribution is to be done equitably and fairly but subject to the discretion of the court. In forming this discretion, the court may consider who shoulders higher responsibilities such as keeping custody and maintenance of the child. The parent that keeps custody of the child may likely be given the lion’s share of the marital property.

In other instances, the property may be distributed equally by the Court.

Can the couple retain the same surnames?

In Nigeria, it’s customary for a wife to change her surname to her husband’s surname after their marriage, if she consents to do so.

Hence after a divorce, if both husband and wife consent, the wife can retain her former husband’s surname however, where the husband objects to his ex-wife’s continued use of his surname, he may apply to the court for an order of jactitation of marriage. This order of the court would prohibit the woman from continuing to portray herself as though she were still married to the man.

 

 

Culled from LawPàdí