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 of enforceability facing ADR (aside arbitration), efforts of the parties and the neutra
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.
1 Kevin Nwosu , ‘Alternative Dispute Resolution (ADR): Answers to some Frequently Asked
Questions’ (Paper delivered at Arbitration Workshop, Abuja )
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:
4
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:
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.
1.6.0: LITERATURE REVIEW
It should be note worthy that this research is not an highland, neither is it totally independent of other scholarly work. Thus, it finds its basis in the intellectual and research-based works of some legal scholars in textbooks, articles in journals and on the internet official documents e. t. c.
Barrister Hakeem Ijaiya,2 limiting his work to Nigeria, opined that litigation does not appear to pay much attention to the social relationship of disputing parties prior to litigation and after. He noted that the judgment arising from litigation is binding but does not resolve the initial dispute. The dispute thus remains in its original state. Bitterness and estrangement are some other shortcomings he found for litigation.
H. O. Ijaiya further identified two alternative methods to litigation. These are conciliation and reconciliation. Reconciliation, as provided for by S. 11 (1)
MCA3, he stated, is an alternative to litigation which gets to the root of the initial dispute of parties but he probably did not see anything wrong with hostile atmosphere of the court where reconciliation is sought to be effected. This research has dealt with the issue of hostility of the court that appears not to enhance reconciliation as good as it is.
He opined that conciliation is a better option in that it makes parties deliberate their issues themselves with a third party only facilitating the process of deliberation. He however noted that conciliation is applied to commercial disputes only in Nigeria but failed to point out that it is applied to matrimonial disputes in other jurisdictions aside Nigeria. No other alternative was mentioned by him aside
2 Ijaiya H., ‘Alternatives to Adjudication in Settlement of Matrimonial Disputes’ (2004) vol. 1 No.
5 UDUSLJ. P 79-93
3 Matrimonial Causes Act 1970, Cap. M7 LFN 2004
the two he mentioned. This research has gone far to identify other alternatives and the jurisdictions where they are being applied to marriage disputes and how they are being applied.
As if in dilemma, Ijaiya in the concluding part of the article went on to give recommendations for improving litigation of marriage disputes not minding that he had already pointed out alternatives to litigation. This research instead gives recommendations for improving ADR.
Cristine Piper4, identifying divorce mediation as an alternative to litigation, stated that aside the reduced cost, the most compelling argument for mediation has been in relation to the benefits for children of their parent using mediation. But as part of his appraisal of divorce mediation, he was quick to note that divorce mediation is not good for all divorce cases, especially where the woman has been domestically abused. Piper however did not proffer a way out in such situations.
He further addressed the issue of norms by opining that divorce mediation should have norms not necessarily different from those guiding litigation. But will applying norms guiding litigation applicable to mediation not make mediation a replica of litigation? This research strongly agrees that ADR processes be regulated but not in such manner that will destroy its flexibility.
4 Piper C., ‘Norms and Negotiation in Mediation and Divorce’ in Michael Freeman (ed), ‘Divorce:
Where Next?’ (1996) Dartmouth Publishing Company Limited. P 63-88
Michael Noone5 merely discussed mediation in relation to resolving marriage dispute as a process to litigation rather than an alternative to adjudication. In the process, he identified mediation and conciliation as two words used interchangeably but pointed out the thin line of difference between them. In conciliation, the conciliator makes recommendations to parties while a mediator does not suggest solutions to parties but merely facilitates the mediation process. Mediation should be acknowledged as an alternative put in place to remedy the shortcomings of litigation and not seen as a sole process as Michael did. This research has done this.
Ellie Stoddard6 identified collaborative divorce as one of the alternatives to litigation and further gave a detailed description of how it is applied to matrimonial disputes. He noted that the alternative addresses the three dimensions of divorce: legal emotional and financial, which are handled by an attorney, mental health/child specialist and a financial specialist respectively.
However, since he did not identify any flaw in collaborative divorce, he did not mention how its use can be improved upon. This research however did the two.
5 Noone M., ‘Mediation’, (1996) Cavendish Publications Limited.
6StoddardE.,‘CollaborativeDivorce-AHealthierAlternative
An article from the free encyclopedia7, like Ellie Stoddard, gave an overview, features and mode of operation of collaborative divorce. It stated that it is an alternative to litigation and it employs a team approach in that parties work together with their lawyers, financial and mental health professionals to deal amicably with the emotional, legal and financial aspects of divorce. The article further gave an analysis of how effective the alternative is in some jurisdictions and some of its organizations.
The article however painted a flawless collaborative law perhaps, because of the advanced jurisdictions the article is limited to. Some flaws are fished out by this research and recommendations given to remedy them.
A resource from the internet8 surprisingly espoused how arbitration, as adversarial as it is, can be employed in resolving marriage disputes. This resource explained that a divorce or separation case is mutually submitted by both parties to dispute to a neutral arbitrator who hears from both parties, receives evidence from them and decides like a judge. An arbitrator’s decision (award) may either be binding or non-binding based on the parties’ choice.
7“Collaborative Law”,
<http://en.wikipedia.org/wiki/collaborative_divorce> accessed 13 July 2010
8 ‘Divorce and Arbitration’,
Howbeit, the article sheds the fact that arbitrators can at times be bias and as such abuse the flexibility of the process. This aspect is recognized and remedied in this research.
The Matrimonial Causes Act9 is used to account for the details about how litigation is employed in resolving marriage disputes.
1.7.0: DEFINITION OF TERMS
Award: This is the decision rendered by an arbitrator upon a dispute submitted to
him.10
Alternative Dispute Resolution: This means a process of resolving an issue susceptible to normal legal process by agreement rather than an imposed binding
decision.11
Arbitration: This is the reference of a dispute (marriage dispute in this context) to an impartial third party, chosen by parties to it, who agrees in advance to abide or not to abide by the arbitrator’s award, issued after a hearing at which both parties have opportunity to be heard.
9 Matrimonial Causes Act 1970, Cap. M7 LFN 2004
Collaborative Divorce: This is a family law process enabling couples who have decided to separate to work with their lawyers and other few family professionals in order to avoid uncertain and unfavourable outcome of the court.
Custody: It is the care, control and maintenance of a child which may be awarded
by a court to one of the parties as in a divorce or separation proceedings or after.12
Divorce: This is the legal separation of a man and his wife, effected by the judgment or decree of a court and either totally dissolving the marriage (absolute)
or suspending its effect, so far as it concerns the cohabitation of the parties.13
Divorce Mediation: this is an ADR process, whereby the parties are assisted by a trained and skilled third party, who facilitates confidential communication and negotiation between the disputing parties to reach a voluntary and mutually
agreeable divorce resolution.14
Facilitation: it is a means of helping two disputing parties negotiate issues arising from their dispute. In ADR processes, this is usually performed by a neutral third party, who advises and makes parties realize the consequences of their options/decisions rather than telling them what to do.
Judicial Separation: it is a legal severance of a man and his wife by a decree of
court that is less complete than a divorce.15 It is a limited divorce.
Maintenance: this is the supply of necessaries such as food, clothing and housing, which may be temporarily or permanently ordered by court to be supplied by either party to the other or to their children on a petition for divorce or judicial separation.
Marriage: This is, as defined by Lord Pezance, a voluntary union for life of one
man and one woman, to the exclusion of all others.16
1.8.0: CONCLUSION
It has been pointed out in this chapter that this research focuses on examining the complexities and shortcomings of litigation in marriage disputes and appraising the other methods of resolving matrimonial disputes. The method applied in carrying out the research and the sources of materials for it have been equally discussed. Some terms peculiar to the research have been vividly explained. What the research aims at achieving has been stated likewise. Having stated all these, the subsequent chapter, being the rudiment of the research, gives an outlook of
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