AN APPRAISAL OF THE APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS TO MARRIAGE DISPUTES

AN APPRAISAL OF THE APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS TO MARRIAGE DISPUTES
ABSTRACT

Marriage is a union entered into by two parties in every jurisdiction i. e, marriage is a universal occurrence. Although the legal process involved (either in formality or requirement) varies from one jurisdiction to another, marriage is often characterized by disputes which range from divorce to custody of children, maintenance e. t. c. Marriage, as examined in this context, is limited to that conducted under statutes. In resolving these disputes, recourse is made to adjudication. But overtime, various shortcomings are being found for litigation. These include unnecessary delay caused by congestion of court, high cost of litigation, confrontational nature of litigation amongst others. Employing the Matrimonial Causes Act, 1970, which operates within Nigeria jurisdiction, this research presents an outlook of litigation in resolving marriage disputes and also points out its shortcomings. Consequent upon the shortcomings found for litigation, various alternatives to litigation are being come up with. This research, in line with resolving matrimonial disputes, focuses on examining few of these alternatives which are collaborative divorce, divorce mediation and divorce arbitration. In examining these alternatives, this research points out the advantages they have over litigation in their application to marriage disputes and these amongst others include promotion of confidentiality, cost and time saving. The challenges facing the use of these alternatives which include inadequate skills, lack of enforcement e. t. c. are also examined. Furthermore, ways of curbing these challenges which are put forward as recommendations are included in the latter part of this research. This is thus the mainstay of this research.

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

Marriage is a universal institution which is recognized and respected in various jurisdictions, though the legal formalities of statutory marriage, which this research is limited to, may be different. Besides the general view that marriage is a social institution from which societies are formed, it is also a union sanctified by God and may probably be termed sacred. If marriage is thus viewed in the above form, it will be devastating to the parties involved in a marriage, their children and the society at large, if the marriage is dissolved. It is not the intention of the writer to encourage dissolution of marriage or separation of parties to it. The writer is only of the opinion that where there are issues and strives in a marriage and the best solution, having tried other means, is divorce or separation, parties should not hesitate to do such if they are satisfied with it. It should be noted that where divorce or separation is resorted to, issues of maintenance of parties and their children and custody of children also spring up. However, where divorce or separation proceedings are instituted in court, parties’ emotional status, before, during and after the proceedings are not taken care of. Besides, the adversarial nature of the proceeding and the delay accompanied with it often worsen parties’ emotional health not to talk of the children who experience shame and instability because of lack of confidentiality in the proceeding. These, amongst others, had led to the intervention of alternatives to litigation.

The use of these alternatives, called, Alternative Dispute Resolution, has been thriving well in the areas of shortcomings of litigation. For the purpose of this research, collaborative divorce, divorce mediation and divorce arbitration are the only alternatives examined. Employing these alternatives in marriage disputes (divorce and separation) is a more dignified way of making couples, their children and their finances emerge healthy. This is because emotions are properly taken care of; parties discuss their issues in a friendly atmosphere rather than employing an adversarial approach as witnessed in litigation. These and many more are obvious indications that alternative dispute resolution has been covering up for litigation in the latter’s areas of shortcomings. Howbeit, there are some challenges facing the application of the named alternatives to marriage disputes and which may jeopardize their effectiveness or bestride the reasons behind their inception. For instance, in a situation where the final outcome of an ADR session is not complied with due to lack of enforceability facing ADR (aside arbitration), efforts of the parties and the neutral third party becomes futile since the decision is not binding as experienced in some jurisdictions. Also, there is the challenge of inadequacy in the number of skilled personnel and training centers/facilities. For instance at the moment in Nigeria, there are only few private organizations that provide training services and resources on ADR and none is statutorily created.1 The training these organizations will provide will be little compared to what will be provided if government were to intervene. What and what should be done to put an end to such challenges seeing that the need to stop them is quite imminent? Relevant legal suggestions are offered by this writer in answer to the above questions.

1.1.0: BACKGROUND TO THE STUDY

Divorce or separation, in the opinion of this writer, should be the last resort for resolving conflicts/strives in marriage. It is pointed out in this research that proceedings for divorce or judicial separation in courts do not properly take care of parties’ emotional health and that of their children and that it is adversarial in nature. These and many more are the shortcomings of litigation that have led to the inception of Alternative Dispute Resolution. Alternatives to litigation have been covering up in those areas of shortcomings of litigation. Really, these alternatives are opted for by disputing parties to marriage as a result of the benefits enjoyed therein. For instance, unlike the openness experienced in litigation, where issues of marriage, which are meant to be kept within, are exposed, ADR has brought about confidentiality in matrimony. Aside this, a smooth future relationship, between parties and between them and their children is fostered because ADR is not adversarial as litigation. Howbeit, can it be freely said that the use of these alternatives is free from challenges? If it is not free from challenges, what are those challenges facing it? Few of these challenges have been identified and they include inadequate skills, lack of enforceability and criticism on moral grounds e.t.c. Examining how three of these ADR methods work in marriage disputes under few jurisdictions, this research has been carried out to proffer relevant legal suggestions to overcome the challenges facing them in their application to marriage disputes. This is the inspiration behind this research.

Department: Law
Format: Microsoft Word

Chapters: 1 - 5, Preliminary Pages, Abstract, Bibliography.
Delivery: Email

No. of Pages: 96

Price: 3000 NGN

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