RIGHTS OF A WIFE UNDER THE LAW

Article written by Oluwaseyi Arowosebe, LL.M & Marvellous Monday Esq.

INTRODUCTION

In the past, married women were many things to their husbands. Some of these things included being deputies to their husbands and having properties owned by their husbands. The husbands, in turn, had the authority to do as they pleased with their wives. Women had no voice. The culture and tradition of various communities even encouraged total submission to the will and authorities of husbands without an option. To cut to the chase, some women have gone to marriage and lost their self-worth and self-esteem because they married men who positioned themselves as their Lords and Saviors, aided by society. Irrespective of what society, culture, or tradition has imposed on us, women have rights backed by law. Below are some of the rights that wives have:

For this article, our definition of a married woman is derived from the case of Hyde v. Hyde, which defined marriage as a union between a man and a woman to the exclusion of all others. Thus, we are interested in the woman who is married to one man and the only wife of her husband.

WHAT ARE THE RIGHTS OF MARRIED WOMEN?

• The right to choose one’s name: No law in Nigeria mandates a woman to take a man’s name after marriage. It is for the sake of convenience and coordination that we address people as Mr and Mrs John Odu. It is also worthy of note that, although married, spouses are still separate legal entities. Therefore, where they are to purchase properties or do anything in common, their names should be written in full and distinctively. In fact, no person is regarded as Mr & Mrs John Odu in the eyes of the law. The full names of both parties have to be spelt out always. If the wife’s name is Janet Odu and the husband’s name is John Odu, their names should be written as Mr John Odu and Mrs Janet Odu (in this illustration, Mrs Odu has taken the last name of her husband).

It is acceptable for a wife to take her husband’s last name after marriage, but it is not compulsory. It is, however, encouraged to avoid a situation where the mother and the children have different last names. Wives should note that the name-changing procedures include deposing to an affidavit and publication in the newspaper. They also have to prepare a deed poll and then proceed to the Nigerian Civil Registry to have it published in an official gazette.

This is as held by the Supreme Court in the case of PDP & 2 Ors v. Biobarakuma (2021), 9 NWLR (Pt. 1781) Pg. 27.

• Right to live free from violence, slavery, and discrimination: No woman should live the life of a punching bag. It is not right that a man should correct his wife by beating her with a cane or his bare hands. Physical, psychological, and emotional abuse of one’s spouse is wrong. There is no justification for it. A married woman has the right to live with dignity and self-respect, which cannot be promoted by reducing her to a punching bag with no pride.

Section 34 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is instructive. Also, it is criminal for a man to subject his wife to battery or any form of violence. See Sections 19(1)–(4) of the Violence Against Persons Prohibition Act, 2015, which prescribe the offence of spousal battery and its punishment.

• Right to political participation: A married woman has the right to participate in politics, especially to vote and be voted for. The right to vote and be voted for is a constitutional right provided for under;

Section 77 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Article 25 of the Universal Declaration of Human Rights of 1948, which Nigeria has ratified, also gives everyone the right to vote in an election; everyone here, including married women.

Moreso, a married woman can lay claim to her state or local government of origin to implement the Federal Character formulae at the national or state levels, as the case may be. See Section 2 of the Federal Character Commission Act. Thus, it is an excellent place to see Betty Akeredolu, the wife of the Governor of Ondo State, contest for a Senatorial seat in her home state of Imo. The law allows it.

• Right to own property: The law does not forbid a woman from owning and acquiring property in her name. In Onyia & Anor V. Nwaigwe (2021) LPELR-55692(CA) the court held that:

Therefore, where a wife does not acquire properties personally or in her name, properties acquired during the subsistence of a marriage belong to the couple anyways. But if, for any reason, parties cannot agree on who owns the money or how it should be disposed of, a married woman who thinks the money is her money has every right to acquire property in her name using the money. Also, if the wife wants, their names can be stated separately when they buy the property as joint owners. e.g Mr. John Odu & Mrs John Odu. 

• Right to matrimonial home ownership: Put differently, right to share the property of the marriage. When a husband dies intestate, the matrimonial home does not revert to his extended family. The wife has an unfettered right to live in the home and own it. She also has the right to pass it on to the children of the marriage. This is a big deal in some parts of Nigeria. Women have been sent packing from matrimonial homes after the death of their husbands. It is all shades of wrong. The case of Onyia & Anor V. Nwaigwe (Supra) is very relevant on this point.

• Right to not be compelled to testify against her husband in a criminal proceeding: A wife cannot be compelled to testify against her husband in a criminal matter where her husband is a defendant. The law presumes that the wife has spousal privileges as she has known some things based only on the marriage bond between her and her husband. Therefore, she cannot be compelled by law to spew those privileged pieces of information. Therefore, for the purpose of these privileged communications,

the law in Section 182(3) of the Evidence Act 2011 has provided that:

• Right to inherit family property: There are customs in Eastern Nigeria that disallows women from the inheriting family property. Some states have had to promulgate laws to curtail this repugnant and barbaric practice while the court has now made pronouncements against it. In the case of Ukeje & Anor v Ukeje, decided in 2014, the Supreme Court held that:

The Abia State House of Assembly passed a Law in November 2022 known as The Female Persons Right of Inheritance of Property Law 2022. Rivers State also passed a similar law in September 2022. 

• Right to exit the marriage: This is the most extreme of all rights. Marriage is founded on law. The Marriage Act, the Matrimonial Causes Act and Matrimonial Causes Rules are some laws governing marriages in Nigeria. The same way there is a right to marry after meeting the requirements is that there is a right to exit the marriage on the court’s approval but under certain circumstances. Suppose a situation arises and a wife feels the need to exit a marriage, especially where the marriage has broken down irretrievably. In that case, she is advised to talk to a lawyer to weigh her options concerning the position of the law. The law is clear on that when a marriage can be dissolved.

Section 15 (2) (a-h) of the Matrimonial Causes Act has stated the grounds for the dissolution of marriage:

(2) The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts‐

(a) that the respondent has wilfully and persistently refused to consummate the marriage;

(b) that since the marriage, the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent;

(c) that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

(e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent does not object to a decree being granted;

(f) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;

(g) that the other party to the marriage has, for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made under this Act;

(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.  

It is worthy of note that although women have the right to divorce, it doesn’t mean you wake up and walk away. A statutory marriage can only be dissolved by a court of law or by the death of either party. 

• Right to the custody of children of the marriage – This is a fallout of the right to exit the marriage. It is one thing for a couple to suffer a divorce; the custody of children is another thing entirely. Either parent has the right to seek custody of the child of the marriage. It is not the exclusive right of the man or the woman.

Section 69 (1) Child’s Right Act 2003 provides as follows: 

(1) The Court may‐  

(a) on the application of the father or mother of a child, make such order as it may deem fit with respect to the custody of the child and the right of access to the child of either parent, having regard to‐  

(i) the welfare of the child and the conduct of the parent; and  

(ii) the wishes of the mother and Father of the child,  

(b) alter, vary or discharge an order made under paragraph (a) of this subsection on the application of‐ 

(i) the father or mother of the child, or 

(ii) the guardian of the child after the death of the father or mother of the child; and 

(c) in every case, make such an order with respect to costs as it may think just. 

The court will consider many factors to determine whom to grant custody to. The child’s best interest is the chief among all the factors to be considered. Thus, the court rightly held in the case of Okobi V Okobi (2019) LPELR-49340 (CA) Per Ignatius Igwe Agube, JCA, that “On the issue of custody, it is settled that the primary consideration is the interest of the child who is involved.”

Notwithstanding the fact that the two parents of a child can have physical custody of the child irrespective of his gender, there is a rebuttable presumption that it is better for a growing child should be in the mother’s physical custody. Hon. Justice Uchechukwu Onyemenam clearly elucidated this position, JCA, in the case of Obahaya V. Obahaya (2022) LPELR-57141(CA), where he stated that: 

Hence, contrary to some customary practices that require custody of a male child born out of wedlock must be with the father, the law does not prohibit a woman from taking custody of a child irrespective of the child’s gender. 

CONCLUSION

Women are neither slaves nor chattels of their husbands. They are spouses to their husbands. No party to a marriage is lesser in status than the other party. They are man and wife and should be treated with dignity.