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The controversy surrounding the issue of payment of money to a spouse after there has been a divorce between parties, seems to be older than time itself. This is quite understandable against the background that parties to a marriage in several instances have had to make compromises in every aspect of their lives; ranging from their jobs to their personal identities, and individual choices. The list is endless. A scenario would be one where a woman has had to quit her job in order to enable her to move to where her husband is for cohabitation purposes. One would expect that such a woman, upon the dissolution of such marriage above, be given some kind of monetary award to cater to her needs.
This article will examine the legal considerations surrounding alimony in Nigeria, including the factors that determine the amount and duration of alimony payments, the rights and obligations of the parties involved, and the enforcement of alimony orders.
INTRODUCTION
The Black’s Law Dictionary defines alimony as an allowance paid by one spouse to another by order of the court for maintenance of the other spouse while they are separated, during divorce proceedings, or after they have divorced [i].
Alimony, also known as spousal support or maintenance, is financial support that the court orders a person to give to their spouse during separation or following the divorce proceedings[ii].
From the above definitions, the following can be gleaned:
One thing that is instructive to note is that alimony is not a punitive cost nor is it awarded to mark the misconduct of either of the parties to the proceedings. The sole purpose of making an order for the payment of alimony is to see to the maintenance of a deserving party at any stage of divorce proceedings or beyond.
Another point worthy to note is that while an order for alimony can be made in respect of both valid and void marriages, the same does not include one entered into in accordance with Muslim rites or customary law.[iii]
The legislation that regulates divorce matters and as a matter of extension, alimony proceedings is the Matrimonial Causes Act LFN 1990 which is a legislation that is applicable in the whole of Nigeria over Statutory marriages.
ALIMONY IS NOT COMPULSORY: WHAT WOULD THE COURT CONSIDER?
The award of alimony is not compulsory i.e., a court of law is not bound to order alimony against any party in any divorce proceedings in Nigeria. The grant of an order for alimony is largely discretionary. The judges have the liberty to decide either way they choose in finding whether or not parties to divorce proceedings are liable to pay or receive alimony from the other spouse.
Section 70 of the Act[iv] provides for the powers of the court in Alimony proceedings. The said section is hereunder produced.
Powers of court in Alimony proceedings
(1) Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(2) Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earnings capacity and conduct of the parties to the marriage and all other relevant circumstances.
(3) The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.
(4) The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of 21 years unless the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child[v]
Under Nigerian law, the court has the discretion to order one spouse to pay alimony to the other based on a number of factors. As earlier stated, the courts are not bound by any hard and fast rules to grant alimony. In an instance where the court chooses to grant it, it shall guide itself by some factors in reaching such a decision. We shall proceed to examine the said factors below:
The income and earning capacity of each spouse: The court will consider the income and earning capacity of each spouse when determining the amount of alimony to be paid. This includes any income from employment, investments, or other sources.
The financial needs and obligations of each spouse: The court will also consider the financial needs and obligations of each spouse when determining the amount of alimony to be paid. This includes expenses such as rent, utilities, and medical bills.
The length of the marriage: The length of the marriage is also a factor in determining alimony payments. Generally, longer marriages result in higher alimony payments.
The standard of living during the marriage: The court will consider the standard of living enjoyed by both spouses during the marriage when determining alimony payments. This includes factors such as housing, transportation, and entertainment expenses.
The age and health of each spouse: The age and health of each spouse are also factors in determining alimony payments. If one spouse has health issues that prevent them from working, for example, they may be entitled to higher alimony payments.
The maintenance order or alimony sought, if granted by the court, may be ordered to be paid in a lump sum, weekly, monthly or as the court may deem fit to order[vi].
The factors which the court will consider are exhaustive and are largely discretionary. The case of Nakanda v. Nakanda is very instructive on this principle[vii]. The agelong principle of men being the only spouse ordered to pay maintenance over their wives is no longer the position of the law. Any of the parties may be made to pay alimony.
RIGHTS AND OBLIGATIONS OF PARTIES
Alimony payments involve two parties: the paying spouse (obligor) and the receiving spouse (obligee). Each party has certain rights and obligations under Nigerian law.
Rights of the Obligor
The obligor has the right to challenge the amount of alimony ordered by the court. They can do this by filing an application to vary or set aside the order. The obligor also has the right to request a review of the alimony order if their financial circumstances change.
Obligations of the Obligor
The obligor has an obligation to pay the amount of alimony ordered by the court. Failure to do so can result in legal consequences such as contempt of court charges.
Rights of the Obligee
The obligee has the right to receive alimony payments as ordered by the court. They also have a right to request a review of the alimony order if their financial circumstances change.
Obligations of the Obligee
The obligee has an obligation to use alimony payments for their intended purpose, which is to provide financial support for their living expenses.
ENFORCEABILITY OF ALIMONY ORDERS
Enforcing alimony orders can be challenging in Nigeria. The court has limited powers to enforce alimony orders, and there are often delays in the enforcement process. However, there are several options available to parties seeking to enforce alimony orders.
One option is to file a contempt of court motion against the obligor for failing to comply with the alimony order. This can result in fines or imprisonment for the obligor.
Another option is to seek a garnishee order, which allows the obligee to collect alimony payments directly from the obligor’s wages or bank account. This can be an effective way to ensure timely and consistent payment of alimony.
CONCLUSION
Alimony is an important legal consideration in divorce and separation cases in Nigeria. The court has the discretion to order one spouse to pay alimony to the other based on a number of factors, including income, financial needs, length of marriage, standard of living, and health. Both parties have rights and obligations under Nigerian law, and while enforcing alimony orders can be challenging, there are options available to remedy the challenges. It is important for parties involved in alimony cases to seek legal advice and representation to ensure that their rights are protected and that their obligations are met.
[i]https://www.google.com/search?q=blacks+law+alimony&oq=blacks+law+alimony&aqs=chrome..69i57j0i8i13i30l2j0i390i650l4.8826j0j7&sourceid=chrome&ie=UTF-8
[ii]https://www.google.com/search?q=alimony&oq=ali&aqs=chrome.0.69i59l2j69i57j46i199i433i465i512j69i60l4.5550j0j7&sourceid=chrome&ie=UTF-8
[iii] Section 69 of the Matrimonial Causes Act LFN 1990
[iv] Section 70 of the Matrimonial Causes Act LFN 1990
[v] Section 70 of the Matrimonial Causes Act.
[vi] Section 73 of the Matrimonial Causes Act.
[vii] unreported Appeal CA/L/99/81 of 17/6/88.
Written by Oluwafemi Faniyi for The Trusted Advisors
Email us: info@trustedadvisorslaw.com