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Divorce under the Benins native law and custom

Last Update (July 9, 2020)

In Oshodin  vs. Oshodin(1963) MLR the couple who had validly married under the customary law decided to submit themselves to statutory marriage in London .However, this marriage was dissolved by the court in London. It was held that the customary law marriage remains valid till another court in Nigeria set it aside as court in England have no jurisdiction over customary law marriage entered into in Nigeria particularly in the jurisdiction of customary law marriage.

Customary courts have no jurisdiction to entertain any petition to dissolve a marriage under the marriage Act. They can only entertain petition for the dissolution of marriages under native law and custom. Under the Benins customary law, when a wife divorces her husband she refunds the whole dowry paid on her else she will continue to be his wife, answer his name and may not have sexual intercourse with any other man usually, when a woman divorces her husband, sacrifices are made by the woman in the man's ancestral shine in order to open the way for to have sexual relationship with another man or to marry another man. Such sacrifices cannot be performed if dowry had not been refunded by the woman. when a woman who divorced her husband had a child for another man when she had not refund the dowry, before the advent of the imperial law, such a child belong to the divorced husband and not the biological father of the child. This is no longer so. A biological father to the child is now a legitimate father of that child.
In Onazioche vs.  Isenyo Obande HC of Benue State Nigeria (Onu and Idoko jj, Oct. 31, 1980 Appeal No MD/150A) 1980, their lordship held that "It is repugnant to natural justice, equity and good conscience to award children begotten by one man to another even though once married to the mother of the children and not haven received his bride price, has no access to the woman to be the father of the children" This is imparimaterial with the Benins customary law.

furthermore, it was the contention of their lordship that it is against natural justice, equity and good conscience to grant custody of a child to a father where the evidence shows that, even though his marriage with the child's mother is still subsisting and his bride price has not been refunded to him, he has not had such physical access to the wife as to be the biological or putative father of the child. In Ekpenyong Edet vs. Nyon Essien ENLR 47, the court held that it was contrary to natural law, equity and good conscience to allow the other man had deprived the appellant of his wife without paying dowry for her.

In that case the appellant was married to his wife under native law and custom. His wife left him and went to live with the respondent. Two children were born of the union between the respondent and his wife. The respondent did not pay to the appellant the dowry which he had paid on his wife. The appellant therefore claims the children were his. This was rejected by the court. Benins customary law is not different from this. A child belongs to the biological parents. When parties divorce the children are usually left under the care of their father. Women are not allowed to go with the children because they belong to the man. Exceptional but temporary case is where the child is a new born still being fed with the breast milk.

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