Nigeria: Availability of divorce for women in a Muslim marriage who have experience domestic abuse

The following general information on Islam and family law in West Africa was provided in an undated article, with the latest reference to 1997, on a Website entitled "Islamic Family Law" which is linked to the Website of Emory Law School:

Islam is not a uniform culture across West Africa, but has a plethora of local variations. ...

Even countries with large Muslim populations, the degree to which communities adhere to sharia varies. In essence, while the national law of a country may follow colonial or Western legal patterns, for example, giving equal rights of inheritance to men and women, most disputes involving family law are resolved outside the formal court system at the village or local administrative level. In settling such causes, local communities may give precedence to customary law, sharia or some combination of the two.

For example, Nigeria, Africa's most populous country, traditionally has given priority to customary law, instructing courts in the case of a conflict to apply "the law prevailing in the area of the jurisdiction of the court, or any law binding between the two parties." (Akande 1979.). In the northern and predominantly Muslim part of Nigeria, a combination of al'ada (Hausa customary law) and sharia has historically governed family law. ...

Many West African peoples rarely make use of state legal systems. Instead they rely on their community chiefs to govern according to customary law, using sharia as basis only for divorce. ...

Divorce

Divorce is extremely common in West Africa. Among the Hausa, divorce occurs almost as frequently as marriage. All forms of divorce sanctioned by sharia are allowed, but repudiation is the most common. In Niger and Senegal, however, divorce is not valid until registered with a court. In the rest of West Africa, repudiation is sufficient, meaning that many women do not actually know their marital status. Women who initiate divorce must return the bridewealth their husband paid at the time of the marriage. ...

Among the Fulani, divorce is relatively easy for either partner to obtain, although men are more likely to initiate it. Prior to the final divorce, the spouses must observe a period of conjugal separation in which the wife returns to her father or guardian.

For information on divorce under Islamic law please see the attachment to ZZZ27130.E of 29 May 1997.

According to information in Women's Reproductive Rights in Nigeria: A Shadow Report, prepared for the Nineteenth Sessions of the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), by The Center for Reproductive Law & Policy (CRLP) and the Women's Centre for Peace and Development (WOPED): "In all states in Nigeria, a woman may use domestic violence as a ground for divorce if her husband has been convicted of grievously injuring her or attempting to seriously injure or kill her" (June 1998, Sec. C.2). However, the report notes that the government has not taken any "specific measures to curb domestic violence, despite evidence of its high incidence ... [and that] law enforcement officers do not take cases of domestic violence seriously" (ibid.).

The following information from a 9 December 1999 Tempo article was provided by Baobab, a Nigerian "group committed to women's legal and human rights." Divorce is available in Muslim marriages and Sharia sets out "elaborate mechanisms" for this (ibid.). Normally, prior to divorce proceedings efforts are made at reconciliation and "may involve formal or informal arbitration" involving relatives from both the husband and wife (ibid.). When reconciliation fails, divorce can then be considered and

In Khul'u [one of several divorce options], a divorce is initiated by the wife, where the wife pays a 'ransom' for her freedom. In the event of a dispute over the amount to be paid, the court decides the amount to be paid by the woman as ransom.

Under the Khul'u divorce, the wife usually gives no reason for asking for a divorce where reasons (or complaints) are the cause of seeking a divorce, then a court would decide that the Tafriq or Faskh should be the procedure. In Khul'u divorce the feuding couple agree on a divorce and the wife agrees to pay the husband an agreed sum for her freedom. Usually, the husband, perhaps seething from indignation, demands large sums of money. Khul'u is essentially negotiation. ...

The Tafriq or Faskh simply involves the arbitration of the court. The court can then pronounce a divorce. Cases of this sort are usually brought by women, since men have the right to Talaq (unilateral divorce). Where a complaint is made, the court is obliged to confirm the veracity of such by independent investigation. This involves taking testimonies from witnesses and accepting an oath sworn by husband and wife.

Either the wife or husband must bring application for court- decided divorce on one or more of the following grounds (complaints):

The failure of the husband to provide maintenance (shelter, food, medical expenses, clothing). ...

Injury or discord between the wife and husband, as in the case of verbal abuse, cruelty and destruction of property. ...

In the event of a court-granted divorce on any of these grounds, then the wife does not have to make any payment to the husband or reimbursement of Mahr.

Sadly though women often resort to the Khul'u divorce and pay for their freedom even when they have good complaints for a court-decided divorce. They do not have to pay the husband. Sometimes, because of the delays in the judicial process, wives opt to pay and be released rather than go through an agonising wait (ibid.).

The Center for Reproductive Law and Policy (CRLP) provided the following information on the laws pertaining to divorce in Nigeria:

Similar to marriage, divorce is regulated by various laws. The dissolution of civil marriages is governed by the 1970 Matrimonial Causes Act (1970 Act). ... Customary and Islamic law marriages, which are not governed by the 1970 Act, may be dissolved non-judicially in accordance with customary law or in Sharia courts. In Northern Nigeria, ... a woman may divorce her husband with his consent if she returns the dower payment to him. In considering the grounds for divorce, Sharia courts may take into account, inter alia, any failure to pay maintenance, a prolonged absence, or the infliction of harm (Contemporary Women's Issues June 1998).

The CRLP provided the following information concerning the "reality" of divorce in Nigeria:

where a husband engages in adultery, courts do not regard it as a valid reason for a woman to want to divorce her husband, unless she can prove that he also combined adultery with cruelty (ibid.).

In related information, in Nigeria the Penal Code permits husbands to beat their wives, while marital rape is also not proscribed (Country Reports 2000 Feb. 2001, Sec. 5; Social Watch n.d.).

For further information on domestic abuse in Nigeria please consult NGA34541.E of 16 June 2000.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Contemporary Women's Issues. June 1998. "Women's Reproductive Rights in Nigeria – A Shadow Report." (NEXIS)

Country Reports on Human Rights Practices for 2000. 2001. United States Department of State. Washington, DC. [Accessed 3 Apr. 2001]

Islamic Family Law. n.d. "Socio-Cultural: West Africa." [Accessed 3 Apr. 2001]

Social Watch on Poverty Eradication and Gender Equity, Montevideo, Uruguay. n.d. "Country Reports: Nigeria." [Accessed 3 Apr. 2001]

Tempo [Lagos]. 9 December 1999. "Nigeria; Divorce The Sharia Way." (Africa News/NEXIS)

Women's Reproductive Rights in Nigeria: A Shadow Report. June 1998. The Center for Reproductive Law & Policy (CRLP) and the Women's Centre for Peace and Development (WOPED). [Accessed 15 June 2000]

Additional Sources Consulted

IRB databases

LEXIS-NEXIS

Federation of Nigeria. 1990. Marriages Act. [Accessed 2 Apr. 2001]

_____. 1990. Marriages (Validation) Act. [Accessed 2 Apr. 2001]

REFWORLD

United Nations High Commissioner for Refugees (UNHCR). January 2000. Background Paper on Refugees and Asylum Seekers from Nigeria.

World News Connection (WNC)

Internet sites including:

The Centre for Development and Population Activities (CEDPA)

Center for Gender and Refugee Studies

Global Fund for Women

Global Reproductive Health Forum

International Centre for Nigerian Law

International Women's Health Coalition

The International Women's Rights Action Watch (IWRAW)

Islamic Family Law

United Nations Division for the Advancement of Women

United Nations, Integrated Regional Information Network (IRIN).