Contrary to popular social media belief, Nigerian law makes provisions for different matrimonial causes and reliefs parties to a marriage heading to the rocks can get in the event of a divorce, judicial separation and the like. Alimony is one of such reliefs even though the Matrimonial Causes Act and our courts do not call it alimony.
Contents
Maintenance as an Ancillary Relief in Matrimonial Causes
Factors the Court Considers in Granting Maintenance
Quantum and Duration of Maintenance
What is Alimony?
Alimony is the financial support that a person is ordered by the court to give to their spouse during separation or a divorce; it can be a periodic or lump sum payment.
This type of financial support is different from child support or maintenance of children of the marriage. This is for the spouse who may be disadvantaged financially by virtue of the divorce or separation, the sex of the spouse notwithstanding. Thus, alimony may be granted in favour of the man or the woman depending on the circumstances.
Note that the court does not just grant alimony once a divorce is filed and determined, the party who desires such ancillary order must make an application to the court for it. You need a lawyer through this process, chat with one of our divorce lawyers here
Read our blog post, on the complete guide to divorce in Nigeria here
Is There Alimony in Nigeria?
From the year 1970 when the the Matrimonial Causes Act came into being, the term alimony was expunged from our legal lexicon in Nigeria, and it is now replaced by the term, Maintenance, which has the same meaning as alimony. Maintenance is simply financial support giving to a partner when a couple are divorced or separated. Maintenance is provided for in section 70 0f the Matrimonial Causes Act.
However, aside change in nomenclature, there is not much difference between how and why the court orders alimony in Nigeria; and how and why it orders maintenance in Nigeria.
Aside Maintenance, there is also Settlement of property (read about settlement of property here) which is provided for by section 72 of the Matrimonial Causes Act. These 2 provisions are in place for fairness and justice in order not to leave one party overly disadvantaged because of a divorce and in some cases separation.
Hereunder, we will go into more details about maintenance, which is basically the same thing as alimony for abetter understanding of how the concept works in Nigeria.
Maintenance as an Ancillary Relief in Matrimonial Causes
A maintenance order can be sought as an ancillary relief, either pending proceedings for matrimonial reliefs (maintenance pendente lite) or after the completion of proceedings (maintenance per se).
It’s important to note that a maintenance order can only be sought in Nigeria under the Matrimonial Causes Act and should be ancillary or incidental to a pending or concluded main relief .That is, there must be a divorce or the like, already going on between the couple in court, before one of them can apply for maintenance as a matrimonial cause. Also, only couples who had statutory marriages in Nigeria can seek this relief as it must be attached to a divorce or separation proceeding. Couples who had just customary marriages or Islamic marriages are not covered under the MCA and cannot seek a relief through it.
Factors the Court Considers in Granting Maintenance
When granting maintenance, the court considers what is just and equitable in the circumstances of each case. The court takes into account several factors, including:
1. The means of the parties: This includes liquid cash, capital assets, shares in companies, investments, and contingent and prospective assets.
2. Earning capacity: The court considers the income and potential income of both parties. Except in situations where one of the parties was unemployed during the marriage by agreement of both, the court considers the earning potentials of a jobless spouse in granting maintenance. For example, if a woman who trained as nurse stayed at home to take care of kids during the marriage, the court will not consider what she would have earned if she were working in granting maintenance. On the other hand, if she lost her job and is still not employed, the court will consider what she would have earned if she were working in granting maintenance. In McEwan vs McEwan[i], the court took into account the potential earning of the man and held that the retired constable who had been out of job would have been gainfully employed if he tried.
3. Conduct of the parties during the marriage: The behaviour of both parties during the marriage can influence the court’s decision: in considering this, the court does not look at whose conduct led to the divorce or not, instead, it looks at if the applicant has conducted himself/ herself in such a manner that it would be unfair to ask the other for spousal support. The conduct must be grievous to be considered as a factor. For example, where one spouse was caught committing adultery with a relative on their matrimonial bed. Or where a spouse has caused the other grievous bodily harm or planned the others death or kidnap. Such conducts are considered by the court in granting maintenance.
4. Other relevant circumstances: These could include the social standing of the parties, their lifestyles, the age of the parties, the existence, and the number of children, pending mortgage or debt and extended family obligations especially to one’s parents.
Quantum and Duration of Maintenance
The Matrimonial Causes Act unfortunately did not specify the formular for determining the amount to be ordered as maintenance. The court exercises discretion in determining the amount and duration of maintenance. This as well as the effect of inflation has left much to be desired in this aspect of our matrimonial causes. Another drawback is that most times, it is difficult to prove the earning capacity of parties to a matrimonial cause. All these, most times lead to an unfair and useless amount being granted as maintenance.
It would have been better if a formular or percentage is stated as the least to be granted as maintenance.
The duration of the maintenance is determined by the circumstances of each case, and at the court’s discretion,
Conclusion
Maintenance (or alimony) as an ancillary relief in matrimonial causes serves as a crucial means of providing financial support to a spouse and/or children in the event of a divorce or legal separation. The court, in its wisdom and guided by the provisions of the MCA, considers various factors to ensure a just and equitable maintenance order. As every case is unique, it’s always advisable to seek legal counsel to understand the potential outcomes in your specific situation.
Remember, the law is there to ensure fairness and protect the rights of all parties involved in a matrimonial cause. It’s essential to understand these provisions and how they apply to you. Stay informed and seek legal advice by chatting with one of our lawyers here.
We don’t just write to teach you Nigerian law in a simple way, we are your best family law lawyers in Nigeria. Feel free to reach our firm on, 08030881289.
Stay tuned for more informative posts on various aspects of Nigerian law.
[i] [1972] IWLR 1217.
