There are three types of marriages in Nigeria against which background the succession laws will be applied.  Statutory marriage admits one man, one wife.  Customary marriage permits limitless number of wives, whilst Islamic Muslim law marriage allows up to four wives. Nevertheless it is the duty of the spouse to ensure that at death, adequate provision is made for his widow/widower and child (ren) from his/her estate including the adopted child (ren) and the child (ren) he/she took parental responsibility of before his/her death.

When a person dies leaving behind property by whatever name described, he or she either dies testate in that he or she made a Will by which he or she disposes of his or her property or he or she dies intestate in that he or she made no Will or the Will he or she made is invalid for any reason recognized by the law. In either case there are detailed laws that govern the administration and distribution of the property of the deceased.

Whilst it is correct to say that a Testator has complete freedom to give his/her property to whomever s/he desires, the various Wills Act put certain restrictions.  One of the restrictions of the full testamentary power of a Testator is found in Section 2 of the Wills Law of Lagos State which states as follows: “Notwithstanding the provision of Section 1 of this Law where a person dies and is survived by any of the following persons –

(a)          the wife or wives or husband of the deceased; and

(b)          a child or children of the deceased, that person or those persons may apply to the Court for an order on the ground that the disposition of the deceased estate effected by his Will is not such to make reasonable financial provision for the Applicant.

“(2)        In this section “reasonable financial provision” in the case of an application made by virtue of Subsection (1)(a) of the Section by the husband or wife or wives of the deceased (except where the marriage with the deceased was subject of a decree of judicial separation in accordance with any customary law and at the date of the death the decree was in force and the separation was continuing, means such financial provision as it would be reasonable in all circumstances of the case for husband or wife or wives to receive, whether or not that provision is required for his or her maintenance. “(3)    An application under this section shall be exercisable only within a period of six months from the grant of the Probate”.

From the foregoing, dependants can also bring an action to contest the provisions of a Will that did not make provisions for them.

CUSTODY OF THE CHILD (REN)

From a practitioner’s point of view, having custody of the child/children is often a tough battle particularly for women coming out of a bad relationship or marriage.

A case in point is that of Mariam, who was married under customary law and was thrown out of her matrimonial home by her husband. The husband refused to allow her access to the home nor the custody of any of her four children including the one less than 8years old. Mariam approached a human rights’ attorney in Lagos, insisting that she wanted the custody of her children.   She was accompanied to the welfare office to negotiate the custody , the case was later referred to a family court in Lagos, where the Magistrate allowed shared custody, with the children staying more with their father during school periods but the mother for weekends and  partly during the  holidays.

The primary consideration in awarding custody of the child (ren) is the welfare and the best interest of the child (ren). The factors to be considered by the courts are not exhaustive. In Alabi v Alabi (2007) and Olowoofoyeku v. Olowoofoyeku (2011) 1 NWLR (pt. 1227) 177, the court stated that the following factors among others are key in determining who should have custody:

• Emotional attachment to a particular parent.
• Degree of familiarity.
• Adequacy of facilities (educational, social, emotional, and so on).
• Respective incomes of the parties.
• If one of the parties lives with a third party.
• If the child is of tender age.
• Opportunities for a proper upbringing.

CONTACT WITH CHILD (REN)

Where it is agreed that the child (ren) will not live with the parties, it is necessary for the woman to make an informal arrangement for contact with her child (ren).  If it isn’t possible to make an informal arrangement, the woman can apply to the court for a child (ren) contact order. The court order will usually allow contact between the child (ren) and the parent with whom the child (ren) is not living, unless there are exceptional circumstances.

The Feminist Attorney is a Legal Practitioner and Academic with many years of experience. She has offered to share her expertise with Above Whispers readers anonymously because she will be sharing real life case studies with us. If you have a question for the Feminist Attorney please leave your comments below or send it to info@abovewhispers.com