AN APPRAISAL OF THE APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS TO MARRIAGE DISPUTES
ABSTRACT
Marriage is a union entered into by two parties in every jurisdiction i. e, marriage is a universal occurrence. Although the legal process involved (either in formality or requirement) varies from one jurisdiction to another, marriage is often characterized by disputes which range from divorce to custody of children, maintenance e. t. c. Marriage, as examined in this context, is limited to that conducted under statutes.
In resolving these disputes, recourse is made to adjudication. But overtime, various shortcomings are being found for litigation. These include unnecessary delay caused by congestion of court, high cost of litigation, confrontational nature of litigation amongst others. Employing the Matrimonial Causes Act, 1970, which operates within Nigeria jurisdiction, this research presents an outlook of litigation in resolving marriage disputes and also points out its shortcomings.
Consequent upon the shortcomings found for litigation, various alternatives to litigation are being come up with. This research, in line with resolving matrimonial disputes, focuses on examining few of these alternatives which are collaborative divorce, divorce mediation and divorce arbitration. In examining these alternatives, this research points out the advantages they have over litigation in their application to marriage disputes and these amongst others include promotion of confidentiality, cost and time saving. The challenges facing the use of these alternatives which include inadequate skills, lack of enforcement e. t. c. are also examined.
Furthermore, ways of curbing these challenges which are put forward as recommendations are included in the latter part of this research. This is thus the mainstay of this research.
TABLE OF CONTENTS
COVER PAGE ……………………………………………………….      i         Â
CERTIFICATION PAGE …………………………………………..      ii
ABSTRACT …………………………………………………………..      iii
TABLE OF CONTENTS …………………………………………….     iv
DEDICATION ………………………………………………………..      viii
ACKNOWLEDGMENT ……………………………………………..     ix
TABLE OF CASES …………………………………………………..     xi
TABLE OF STATUTES ……………………………………………..     xii
TABLE OF MODEL LAWS …………………………………………     xiii
LIST OF ABBREVIATIONS …………………………………………   xiv
CHAPTER 1Â
GENERAL INTRODUCTION
1.0.0: INTRODUCTION ………………………………………………   1        Â
1.1.0: BACKGROUND TO THE STUDY ……………………………  3
1.2.0: OBJECTIVES OF STUDY ……………………………………..   4
1.3.0: FOCUS OF STUDY …………………………………………….    5
1.4.0: SCOPE OF STUDY ……………………………………………..   5
1.5.0: METHODOLOGY ……………………………………………       6
1.6.0: LITERATURE REVIEW ………………………………………… 6
1.7.0: DEFINITION OF TERMS ……………………………………….. 11
- 0: CONCLUSION …………………………………………………… 13
CHAPTER 2 LITIGATION OF MARRIAGE DISPUTES UNDER NIGERIA STATUTES
- 0: INTRODUCTION ………………………………………………… 14
2.1.0: LITIGATION OF MAJOR MARRIAGE DISPUTES ………    16
2.1.1.0: LITIGATION IN DIUSSOLUTION OF MARRIAGEÂ
             [DIVORCE] …………………………………………………….. 16
2.1.1.1: LITIGATION IN JUDICIAL SEPARATION ……………… 22
2.1.1.2: LITIGATION IN RESTITUTION OF COJUGALÂ
             RIGHT …………………………………………………………. 23
2.1.1.3: LITIGATION IN JACTITATION OF MARRIAGE ………   24
2.2.0: LITIGATION OF ANCILLARY DISPUTES …………………. 24
2.2.1.0: LITIGATION IN MAINTENANCE …………………………. 25
2.2.1.1: LITIGATION IN CUSTODY OF CHILDREN …………….. 27
2.3.0: SHORTCOMINGS OF LITIGATION ………………………… 28
- 0: CONCLUSION ………………………………………………… 32
- CHAPTER 3 APPLICATION OF ADR METHODS TO MARRIAGE DISPUTES
- 0: INTRODUCTION ……………………………………………… 33
3.1.0: COLLABORATIVE DIVORCE ……………………………….   34
3.2.0: DIVORCE MEDIATION ………………………………………. 42
3.3.0: DIVORCE ARBITRATION ……………………………………. 48
 3.4.0: ADVANTAGES OF ADR OVER LITIGATION …………….. 51
- 0: CONCLUSION ………………………………………………….. 55
CHAPTER 4 CHALLENGES AND PROSPECTS OF ADR IN RESOLVING MARRIAGE DISPUTES
- 0: INTRODUCTION ………………………………………………. 56
4.1.0: CHALLENGES OF ADR ………………………………………. 56
4.2.0: PROSPECTS OF ADR …………………………………………. 61
- 0: CONCLUSION ………………………………………………….. 70
CHAPTER 5 GENERAL CONCLUSION
- 0: CONCLUSION ………………………………………………….. 71
5.1.0: RECOMMENDATION …………………………………………. 73
BIBLIOGRAPHY ……………………………………………………… 78
ARTICLES IN JOURNALS …………………………………………. 78
ARTICLES ON THE INTERNET ……………………………………  79Â
BOOKS…………………………………………………………………… 75
CHAPTERS IN BOOKS………………………………………………     75
NEWSPAPER REPORTS ON THE INTERNET……………………  76
REPORTS AND OFFICIAL DOCUMENTS………………………… 77
REPORTS AND OFFICIAL DOCUMENTS ON THE INTERNET…….77
TABLE OF CASES
ENGLAND
- Blackwell v Blackwell (1974) 4 Fam. L. 79
- Hyde v Hyde (1866) L. R 1 P&D 130
- R v Clarke (1949) 2 All E. R 448
- Trestain v Trestain (1950) 1 All E. R 618
NIGERIA
- Adeyemi v Adeyemi (1971) 1 NMLR 255
- Aja v Aja (1922) 1 ECSLR 140
- Akere v Akere (1962) WNLR 328
- Bairbre Oloyede v Hector Oloyede (1971) 2 UILR 20
- Egwunwoke v Egwunwoke (1966) 2 All NLR 250
- Ezirim v Ezirim (suit No FCA/L/56/78[unreported] Feb. 6, 1981, Court of Appeal, Lagos Division)
- Griffith v Griffith (1974) 1 WLR 1350
- Ogogwe v Ogogwe (1992) 2 NWLR (PT 225) 539
- Oviasu v Oviasu (1973) 1 All NLR (PT II) 75
UNITED STATES OF AMERICA (TEXAS)
- Mason v Mason (2008) No 14-07-00991-CV (Tex. App.-Houston[14th
Dist.])
TABLE OF STATUTES
ENGLAND
- Access to Justice Act, 1999
- English Divorce Reform Act, 1969
- Family Law Act, 1996
NIGERIA
- Arbitration and Conciliation Act 1988, Cap. A19 LFN 2004
- Infant Law 1958, Western Region Laws
- Matrimonial Causes Act 1970, Cap. M7 LFN 2004
UNITED STATES OF AMERICA
- United States of America Arbitration Act, 1925
- Texas Family Code, 2005
- New Jersey Rules of Court,2006
- TABLE OF MODEL LAWS
- United States of America Model Uniform Collaborative Law Act, 2009
- United States of America Uniform Arbitration Act, 2000
- American Academy of Matrimonial Lawyers: Model Uniform Arbitration
Act,2003
LIST OF ABBREVIATIONS
- AC: Appeal Cases
- ADR: Alternative Dispute Resolution
- All E. R: All England Report
- All NLR: All Nigeria Law Report
- : Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appeals
- CA: Court of Appeal
- CAP: Chapter
- : Chancery
- : District
- ECSLR: East Central State Law Report
- R: England Report
- L: Family Law
- FCA: Federal Court of Appeal
- HKIAC: Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Hong Kong International Arbitration Centre
- IACP: International Association of Collaborative Law Professionals
- Ibid: Same authority and author
- LFN: Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Laws of Federation of Nigeria
- R: Law Report
- MCA: Matrimonial Causes Act
- M.L.R: Nigeria Monthly Law Report
- W.L.R: Nigeria Weekly Law Report
- UCLJ: University of Calabar Law Journal
- UDUSLJ: Uthman Danfodio University, Sokoto, Law Journal
- UILR: Â Â Â Â Â Â Â University of Ibadan Law Report
- : Volume
- WLR: Western Law Report
- WNLR: Western Nigeria Law Report
CHAPTER ONE
GENAERAL INTRODUCTION
1.0.0: INTRODUCTION
Marriage is a universal institution which is recognized and respected in various jurisdictions, though the legal formalities of statutory marriage, which this research is limited to, may be different. Besides the general view that marriage is a social institution from which societies are formed, it is also a union sanctified by God and may probably be termed sacred.
If marriage is thus viewed in the above form, it will be devastating to the parties involved in a marriage, their children and the society at large, if the marriage is dissolved. It is not the intention of the writer to encourage dissolution of marriage or separation of parties to it. The writer is only of the opinion that where there are issues and strives in a marriage and the best solution, having tried other means, is divorce or separation, parties should not hesitate to do such if they are satisfied with it. It should be noted that where divorce or separation is resorted to, issues of maintenance of parties and their children and custody of children also spring up.
However, where divorce or separation proceedings are instituted in court, parties’ emotional status, before, during and after the proceedings are not taken care of.
Besides, the adversarial nature of the proceeding and the delay accompanied with it often worsen parties’ emotional health not to talk of the children who experience shame and instability because of lack of confidentiality in the proceeding. These, amongst others, had led to the intervention of alternatives to litigation.
The use of these alternatives, called, Alternative Dispute Resolution, has been thriving well in the areas of shortcomings of litigation. For the purpose of this research, collaborative divorce, divorce mediation and divorce arbitration are the only alternatives examined. Employing these alternatives in marriage disputes (divorce and separation) is a more dignified way of making couples, their children and their finances emerge healthy. This is because emotions are properly taken care of; parties discuss their issues in a friendly atmosphere rather than employing an adversarial approach as witnessed in litigation. These and many more are obvious indications that alternative dispute resolution has been covering up for litigation in the latter’s areas of shortcomings.
Howbeit, there are some challenges facing the application of the named alternatives to marriage disputes and which may jeopardize their effectiveness or bestride the reasons behind their inception. For instance, in a situation where the final outcome of an ADR session is not complied with due to lack ofenforceability facing ADR (aside arbitration), efforts of the parties and the neutral third party becomes futile since the decision is not binding as experienced in some jurisdictions. Also, there is the challenge of inadequacy in the number of skilled personnel and training centers/facilities. For instance at the moment in Nigeria, there are only few private organizations that provide training services and resources on ADR and none is statutorily created.[1] The training these organizations will provide will be little compared to what will be provided if government were to intervene.
What and what should be done to put an end to such challenges seeing that the need to stop them is quite imminent? Relevant legal suggestions are offered by this writer in answer to the above questions.
1.1.0: BACKGROUND TO THE STUDY
Divorce or separation, in the opinion of this writer, should be the last resort for resolving conflicts/strives in marriage. It is pointed out in this research that proceedings for divorce or judicial separation in courts do not properly take care of parties’ emotional health and that of their children and that it is adversarial in nature. These and many more are the shortcomings of litigation that have led to the inception of Alternative Dispute Resolution.
Alternatives to litigation have been covering up in those areas of shortcomings of litigation. Really, these alternatives are opted for by disputing parties to marriage as a result of the benefits enjoyed therein. For instance, unlike the openness experienced in litigation, where issues of marriage, which are meant to be kept within, are exposed, ADR has brought about confidentiality in matrimony. Aside this, a smooth future relationship, between parties and between them and their children is fostered because ADR is not adversarial as litigation.
Howbeit, can it be freely said that the use of these alternatives is free from challenges? If it is not free from challenges, what are those challenges facing it? Few of these challenges have been identified and they include inadequate skills, lack of enforceability and criticism on moral grounds e. t. c.
Examining how three of these ADR methods work in marriage disputes under few jurisdictions, this research has been carried out to proffer relevant legal suggestions to overcome the challenges facing them in their application to marriage disputes. This is the inspiration behind this research.
1.2.0: OBJECTIVES OF STUDY
The aims of this research are:
- to create an awareness that there are alternatives to litigation in resolving marriage disputes and
- to proffer relevant legal suggestions, (after analyzing how the alternatives work, their advantages and challenges facing them) that will enhance the effectiveness of the alternatives, in their application to matrimonial disputes.
1.3.0: FOCUS OF STUDY
The primary focus of this research is to appraise the application of collaborative divorce, divorce mediation and divorce arbitration as alternatives to litigation of marriage disputes.
Against this background, specific aspects will be touched and these are:
- litigation of marriage disputes and its shortcomings;
- advantages of ADR over litigation in marriage disputes;
- challenges facing ADR and
- suggestions for effective operation of ADR in marriage disputes.
1.4.0: SCOPE OF STUDY
The ADR methods examined by this research are limited to collaborative divorce, divorce mediation and divorce arbitration. These methods are appraised in connection with their application to marriage disputes only. Marriage disputes in this context are those arising from marriage conducted under statutes.
In terms of jurisdiction, references shall be made to application of the named
ADR methods in Nigeria, United States of America, England and Wales, Hong Kong, Australia and few others.
1.5.0: METHODOLOGY
The methods employed in carrying out this research are majorly descriptive and analytical methods. The descriptive method is used in giving a detailed outlook and mode of operation of litigation and the named methods while the analytical method is used for the appraisal of these same methods.
In the light of this, materials used for the research are obtained from both primary and secondary sources. One of the primary sources being the Matrimonial Causes Act, 1970 under Nigeria jurisdiction while the secondary sources include textbooks, articles in journal, articles from internet, papers delivered at seminars and articles in law series.
[1] Kevin Nwosu , ‘Alternative Dispute Resolution (ADR): Answers to some Frequently Asked
Questions’ (Paper delivered at Arbitration Workshop, Abuja )
DOWNLOAD COMPLETE PROJECT MATERIAL
AN APPRAISAL OF THE APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS TO MARRIAGE DISPUTES
