The breakdown of a marriage comes with emotional, financial, health and social consequences for the couple, their children and their extended families in some cases.
In a divorce, one of the critical decisions is child custody. It matters who a child lives with. A Swedish study, for example, found that shared custody protects children’s emotional well-being by reducing their stress level because it limits the loss of parental social and financial resources that affect children after divorce. And a study of 17 sub-Saharan African countries showed that living with a father alone is detrimental to children’s nutritional status. This may be due to inability to effectively manage work-family conflict.
The laws of most countries clearly state the rules about custody in a divorce. In Nigeria, the decision is guided by the Matrimonial Causes Act. The primary consideration is the interest and welfare of the children.
As in many other countries, the secular family laws don’t give men special rights. But customary and religious norms that disadvantage women in custody awards still prevail in many contexts. This is especially true in plural justice systems. Nigeria’s is one of these: it consists of a supreme court, appeal court, high court and magistrate court – as well as sharia and customary courts.
In many Nigerian patriarchal cultures, women bear and raise children but the children ‘belong’ to the man. This is hinged on the overarching principle of customary law that denies a mother’s lineage and strongly upholds patrilineage. If the couple divorce, the mother leaves the children for the ‘owner’ – the father. These religious and cultural traditions influence the awarding of child custody in sharia and customary courts.
The rights of children and women have been documented under various treaties and conventions such as the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, the African Charter on the Rights and Welfare of the Child, the United Nations Convention of the Rights of the Child, and African Union Gender Policy. But patriarchal cultures often violate these rights.
In the first study of its kind, we looked at 15 cases of divorce in a customary court in Ekiti State, Nigeria. Almost all were initiated by the wife, mostly for reasons of neglect or domestic violence. But only one of the custody decisions was in favour of the woman alone. The interests of children and the rights of women were not followed as the main guide to the award of custody.
These findings provide useful evidence to guide interventions and legal reforms in Nigeria and other countries that have plural legal systems.
Legal systems
In custody matters, Nigeria’s Matrimonial Causes Act considers factors like an emotional attachment to a particular parent; the degree of familiarity and wishes of the child; and adequacy of facilities. It also looks at the respective incomes of the parties; whether one of the parties lives with a third party; the child’s age and sex; opportunities for a proper upbringing; and the conduct of the parties. The custody of children after divorce may be joint or to one party with a visitation right to the other. It’s not awarded on the basis of who is guilty of the matrimonial offence.
The dominant ethnic group in Ekiti State is Yoruba. All the couples in our study were of Yoruba origin and all the women were economically active. In traditional Yoruba law, the children ‘belong’ to their father. Although motherhood is revered and said to empower a woman in the Yoruba culture, a woman’s right to custody of a child is limited to as long as she is in a union.
Of the 15 cases we studied, 12 were initiated by the wife. The plea for divorce was granted in all but two cases.
Unlike some societies where most divorce petitions are granted on no-fault grounds, all the divorce cases in this analysis were on fault grounds. The reasons varied according to gender. Neglect of the wife’s and children’s welfare, poverty and domestic violence were the common reasons women gave for seeking divorce. The two men who sought divorce gave reasons of insubordination, adultery and an uncaring attitude to the children and the man.
Custody awards
Sole custody was granted to the man in six cases. Joint custody was granted in five cases. In four of those five, the custody of the child awarded to the woman was temporary because the child was underage or the man had no income. Sole custody to the woman was granted in only one of the 12 cases. This is unlike more developed countries where women usually get sole custody or shared custody.
We observed that custody was awarded to the man in almost all cases, even when the divorce petition was on the ground of lack of proper care by the man for the children. This suggests that the child’s interest is secondary under the customary law. Instead, the main concern is the men’s right to the children. This infringes on the right of women to their children and the right of children to be cared for. It is also a tacit encouragement of child abuse and neglect.
Culture should not be upheld to the detriment of human welfare. The welfare of children should be the main guide in the award of child custody after divorce. The woman’s rights to her children are equal to the man’s, if not greater. Her right to live with her children should get due attention in all judgements on child custody after divorce.
Countries like Nigeria, where traditional models of guardianship exist along with modern legal systems, should take care that custody awards do not put children at risk.
Favour Chukwunonyerem Ntoimo, law student, is a co-author of this study.