Someone’s spouse is the person who they are married to or their partner in Marriage. Under common law when a man and woman got married, they became a single person in the eyes of the law—that person being the husband.
In Nigeria, there is a strong public policy in favor of marriage. Because of this, husbands and wives are not always able to determine their duties and privileges toward one another; instead, these rights and responsibilities are set forth by special legal principles that define the parameters within which husbands and wives must act.
This article shall raise a plethora of common questions on the Legal obligations and relationships between married couples under Nigerian Laws.
Criminal Liability of Married Persons
Can a husband be held liable for raping the wife?
Spousal or marital rape is not known to Nigerian Criminal Justice System. Section 6 of the Criminal Code Act¹ defines unlawful carnal knowledge as that which takes place otherwise than between a husband and wife, and the offence is complete upon penetration. In other words, marital rape is not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract. Nonetheless, this implied consent is revocable either by an order of a court or a separation agreement. Hence, it can be distilled from the combined provisions of the criminal and the penal code Act that a husband cannot be guilty of raping his wife.
However, a husband may only be found guilty of raping his wife where there is a Decree of judicial separation or where there is a divorce nisi. Also, where an injunction has been granted against a husband from molesting his wife or where he has given an undertaking to the court not to do so, a similar situation will apply. It is important to note that when this same act happens against an unmarried woman, it is treated as a grave offence punishable by life imprisonment under the Penal and Criminal code. Sadly, For now, under Nigerian criminal law, a man may be charged with assault, depending on the circumstances under which he has sexual intercourse with his wife, but he cannot be charged with raping his wife.
Does the husband have the right to chastise or beat his wife?
Ordinarily, the question above is not even meant to be a rational question. However, it is unfortunate to realize that Section 55 of the Penal code Act provides that an assault by a man on a woman is not an offense if they are married if the native law or custom recognizes such ‘correction’ as lawful, and if there is no grievous hurt. It would be careful not to forget that the Penal Code applies to the Northern states of Nigeria only.
Several Lawyers and human right’s activist groups have consistently criticized this discriminatory provision and have challenged the constitutionality of this section vis-à-vis the provision of sections 34 and 42 of the constitution of the federal republic of Nigeria 1999 as amended and the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9 Law of the Federation of Nigeria, 2004.
Can a wife be criminally responsible for an act she does in her husband’s presence or vice versa?
Under the Nigerian criminal laws, A wife is not criminally responsible for an act which she was compelled to do by her husband in his presence, provided that such an act is not an offence punishable by death or one in which grievous bodily injury is an element.²
Can a wife be liable for criminal conspiracy?
Since Husband and Wife are regarded as one in law, neither of them can be liable for conspiring with the other, except where a third party is involved.³
Can a wife be liable for stealing her husband’s property or vice-versa?
Again, because before the eyes of the law they are seen as one person, neither a husband nor the wife can be liable for stealing each other’s property as a person cannot steal his own property.
Nonetheless, A spouse will be liable for stealing the other’s property where the act is done with the intention to defraud a third party.⁴
Relationships of Married Couples in Contract
Can a husband independently enter a valid contract with his wife or vice versa?
Like earlier mentioned, A husband and wife were taken as a single entity under the principle of “unity of spouses” in Common Law. For this reason, a husband could not, before now, enter a valid contract with his wife because a single entity cannot contract with itself.
Today, A woman in Nigeria has full contractual capacity. However, there is a rebuttable presumption that contracts between husbands and wives are not intended to be legally binding in Law. It may be rebutted by the fact that the parties weren’t living together or in peace as at the time of the contract.
Furthermore, when the wife pledges the husband’s credit for necessaries the husband will be bound to the contract even where he did not enter into or expressly authorize it. Moreover, she cannot where she borrows money or where she has expressly be forbidden to.
Can a husband sue the wife for a tort or vice versa?
Generally, under common law and statute, a husband cannot sue the wife nor the wife sue her husband for any claim in tort.⁵ However, a married woman can sue anybody including her husband for protection and security of her private property. Also, the husband has a concurrent right to do same.⁶ In the case of ASOMUGA V ASOMUGHA⁷ the husband after having filed a petition for dissolution, brought an application for the release of his personal properties which were being detained by his wife. In granting the application the court cited section 17 of the married women’s property law 1958 as enabling the husband to bring such application.
In addition, it is trite that there is no restriction as to the right of a woman to sue third parties being in tort and without the requirement of joining her husband or his being joined by the other party.
Married Couples or Spouses and The Law of Evidence
Under section 161 of the Evidence Act⁸, the wife or husband is a compellable witness. However, the failure of the wife or husband to give evidence is not to be made the subject of any comment by the prosecution. A husband or wife cannot be compelled to disclose any communication made to him or her during the marriage by the other spouse except in suits between the married couple themselves. Nonetheless, a spouse may disclose any such communication where the other party consents.
Married Couples and Joint Properties
Can a husband evict is wife from a joint property in Nigeria?
To answer this question three issues shall be considered by the court. Firstly, the status of your existing marriage with the husband. Secondly, the wife’s current position of the property and lastly the ownership of the sole rights to the property. It is advisable that the wife engages a lawyer to bring an action for the protection of her rights so that the court can order an injunction restraining the husband from attempting to eject her from the property. The wife may also acquire her husband’s right by buying his share and have him assign all his rights in the property to her or ultimately, seek for dissolution of marriage and pray the court for an order which grants her the property when the marriage is declared dissolved.
It is no news that a lot still needs to be done to bring some of these heavily flawed rules and Nigerian laws in general up to date. I recommend that Nigerian Laws and the Judges must acknowledge rape within marriage and a plethora of provisions should be enacted to protect married women against sexual violence by their spouses.
Also, Discriminatory provisions like Section 55 of the Penal Code where husbands are permitted to chastise their wives must, without hesitation, be expunged. Hence, Women who are suffering or have suffered from severe domestic violence should however seek for protection under relevant laws within their jurisdiction.
Moreover, more provisions should be made by the Nigerian parliament for women married under the Marriage Act to ensure that their property rights are unequivocally protected thereby making them entitled to a share in the marital property, including the husbands’ property, and the jointly owned and acquired property. In addition, Provisions should be made to cover women married under customary laws too who clearly have little or no rights over their spouse’s property.
Lastly, the role that Non-Governmental Organizations and International bodies can play to improve this situation cannot be overemphasized. They should be employed to help mitigate the effects of the discriminatory laws mentioned above.
1 CAP 38 LFN, 2004
2 Section 10 of the Criminal Code Act CAP 38 LFN, 2004
4 Section 161(2) of the Evidence Act, CAP 112 LFN 2004
5 Section 12 Married women’s property law of Western Nigeria 1958
6 Section 17 Married women’s property Law of Western Nigeria 1958
7 (1974) CCHCJ 14
8 CAP 112 LFN, 2004