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MATRIMONIAL RIGHTS ARE NOT FUNDAMENTAL RIGHTS UNDER CHAPTER IV CFRN

Dictum

I hold the firm view the rights to conjugal rights, to continue to be married to an unwilling spouse, and not to separate and call quits to a marriage are not fundamental rights guaranteed under Chapter IV of the Constitution, 1999. The matrimonial causes so called under Section 114 of Matrimonial Causes Act which include dissolution and nullification of marriage, separation and restitution of conjugal rights, though apparently statutory, do not constitute fundamental rights under Chapter IV of the Constitution and for the purpose of FREPR.

— Ejembi Eko, JSC. Nwachukwu v Nwachukwu (2018) – SC.601/2013

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MATRIMONIAL ISSUES CANNOT BE BROUGHT VIA THE FUNDAMENTAL RIGHTS RULES

The application for the enforcement of the Appellant’s fundamental rights to personal property, family and private life, dignity of her person and against discrimination was brought at the trial Court in subtle way to settle the Appellant’s matrimonial dispute with her estranged husband and brother-in-law, respectively the 1st and 2nd Respondents herein. The Appellant had ingenuously crafted an otherwise matrimonial causes matter to fit into the special procedure offered by the Fundamental Rights (Enforcement Procedure) Rules (FREPR). That special procedure, on the peculiar facts of this case, does not avail her to ventilate her matrimonial dispute.

— Ejembi Eko, JSC. Nwachukwu v Nwachukwu (2018) – SC.601/2013

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MAINTENANCE IN DIVORCE CASES

LUMSDEN v. LUMSDEN (1963) 5 FLR 388, the Supreme court of Victoria said on the issue of award of maintenance and I quote from 392 thus: “Maintenance is intended to provide for the needs of the wife and not mark disapproval of the husband’s conduct.”

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COST NOT AWARDED IN MATRIMONIAL MATTER

This being a matrimonial matter it is not in the interest of justice to award costs in this case, each party should bear his or her own costs.

— M.O. Onalaja, JCA. Omotunde v. Omotunde (2000) – CA/I/M.57/2000

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JURISDICTION IN DIVORCE PETITION IS GOVERNED BY DOMICILE

It was held in Koku v. Koku (1999) 8 NWLR (Pt.616) 672 CA that:- “Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the court with jurisdiction to adjudicate on a divorce matter is the court of the domicile of the husband Bhojwani v Bhojwani (1996) 6 NWLR (pt.457) 661”. Omotunde v. Omotunde (2000) – CA/I/M.57/2000

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FACTORS THAT WILL DETERMINE AWARD OF MAINTENANCE – MATRIMONIAL

It seems to me that given the state of civilization, we have reached in this country today and bearing in mind, the emancipation of the women folks into the sold orbit of financial empire in this country today, it seems to be that the sum, if any, to be awarded for the maintenance of a party to a matrimonial proceeding or even the child or children of the marriage should be determined by among other facts: “(1) the stations in life of the parties and their lifestyles, (2) their respective means, (3) the existence or non-existence of child or children of the marriage, and (4) the conduct of the parties.”

– ADEREMI, J.C.A. Mueller v. Mueller (2005)

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BASIS FOR JURISDICTION IN MATRIMONIAL CAUSES IS DOMICILE

Finally the basis of jurisdiction in matrimonial cause under the Matrimonial Causes Act, 1970 is domicile. The issue of domicile of the petitioner forms the foundation or pivot of adjudication in the petition. Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by his residence. By operation of law, a married woman on marriage takes on the domicile of her husband. If parties have acquired American Citizenship and have not abandoned same, their domicile of choice remains valid and, subsisting and endures until their Nigerian citizenship which is held in abeyance, and being their domicile of origin is revived. A domicile of choice is a domicile established by physical presence within a state or territory coupled with the intention to make it a home. Omotunde v. Omotunde 2001 9 NWLR pt 718 pg 252, Koku v. Koku 1999 8 NWLR pt 616 pg 672, Blojwani V Blojwani 1996 6 NWLR pt 457 pg 661.

— O.O. Adekeye, JCA. Ugo v. Ugo (2007) – CA/A/110/2007

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