AN ASSESSMENT OF THE APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS TO MARRIAGE DISPUTES
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BACKGROUND TO THE STUDY
Marriage is a global institution that is recognized and revered in a variety of jurisdictions, even if the legal formalities of statutory marriage, which this study focuses on, may vary (Ayinla, 2009). Apart from the broad belief that marriage is a social institution through which societies are established, it is also a divinely sanctified union that is likely to be referred to as sacred. If marriage is considered in this light, it will be disastrous for the persons involved, their offspring, and society as a whole if the marriage is dissolved (Steve, 2019). The writer does not want to incite the dissolution of a marriage or the separation of its partners. The writer is merely of the opinion that if there are challenges and struggles in a marriage and the best solution, after exhausting all other options, is divorce or separation, the parties should not hesitate to do so if they are satisfied. It should be mentioned that when a couple files for divorce or separates, questions of support for the parties and their children, as well as child custody, arise. When divorce or separation proceedings are initiated in court, however, the emotional well-being of the parties is not considered before, during, or after the processes. Furthermore, the adversarial character of the procedure and the resulting delay often exacerbate the emotional health of the parties, not to mention the children who suffer from humiliation and instability as a result of the court's lack of secrecy. Alternatives to litigation had been introduced as a result of these factors, among others. The adoption of these alternatives, known as Alternative Dispute Resolution, has been growing in regions where litigation has failed (Adamopoulou, 2011). Collaborative divorce, divorce mediation, and divorce arbitration are the only options investigated in this study. Using these options in marriage problems (divorce and separation) is a more respectful method of ensuring the health of spouses, their children, and their wealth. This is because emotions are correctly addressed; rather than taking an antagonistic approach as seen in litigation, parties discuss their concerns in a pleasant environment. These, and a slew of other examples, show that alternative dispute resolution has been used to mask the faults of litigation (Aderibigbe, 2011). However, there are certain obstacles to using the aforementioned options to resolve marriage issues, which may compromise their efficacy or override the goals for their creation. For example, if the parties and the neutral third party fail to comply with the final outcome of an ADR session due to a lack of enforceability facing ADR (aside arbitration), the efforts of the parties and the neutral third party are futile because the decision is not binding, as is the case in some jurisdictions. In addition, there is an insufficient quantity of competent individuals and training centers/facilities. In Nigeria, for example, there are just a few private groups that provide ADR training and tools, and none of them is legally established (Aderibigbe, 2011). The training supplied by these groups will be little in comparison to what would be offered if the government intervened. What can and should be done to put an end to such issues, given the urgency with which they must be addressed? In response to the following queries, this writer offers relevant legal advice.
1.1.0: STATEMENT OF THE PROBLEM
Divorce or separation, in this writer's perspective, should be the absolute last alternative for settling marital disputes. In this study, it is said that court processes for divorce or judicial separation do not adequately address the mental health of the couples and their children, and that they are adversarial in character. These and other flaws in the legal system have prompted the development of Alternative Dispute Resolution. 'Alternative Dispute Resolution (ADR): Answers to Some Frequently Asked Questions,' by Kevin Nwosu (Paper delivered at Arbitration Workshop, Abuja ) Alternatives to litigation have been used to mask the flaws in the legal system. In reality, contesting parties to marriage choose these options because of the advantages they provide. For example, unlike the openness of litigation, when topics of marriage that should be kept private are revealed, ADR has brought about matrimonial secrecy. Aside from that, because ADR is not combative like litigation, it fosters a smooth future connection between parties and between them and their children. Can it, however, be argued that the usage of these alternatives is without risks? What are the problems that it faces if it isn't free of them? A few of these issues have been recognized, and they include insufficient abilities, lack of enforceability, and moral criticism, among others. This study looked at how three of these ADR approaches operate in marriage conflicts in a few jurisdictions, with the goal of providing applicable legal ideas to help them overcome the obstacles they have when applying them to marital disputes. This is where the idea for this study came from.
1.2.0: OBJECTIVES OF STUDY
The aims of this research are: a. to create an awareness that there are alternatives to litigation in resolving matrimonial disputes and 5 b. to proffer relevant legal suggestions, (after analyzing how the alternatives work, their advantages and challenges facing them) that will enhance the effectiveness of the alternatives, in their application to matrimonial disputes.
1.3.0: FOCUS OF STUDY
The primary focus of this research is to appraise the application of collaborative divorce, divorce mediation and divorce arbitration as alternatives to litigation of marriage disputes. Against this background, specific aspects will be touched and these are: a. litigation of marriage disputes and its shortcomings; b. advantages of ADR over litigation in marriage disputes; c. challenges facing ADR and d. suggestions for effective operation of ADR in marriage disputes.
1.4.0: SCOPE OF STUDY
The ADR methods examined by this research are limited to collaborative divorce, divorce mediation and divorce arbitration. These methods are appraised in connection with their application to marriage disputes only. Marriage disputes in this context are those arising from marriage conducted under statutes. 6 In terms of jurisdiction, references shall be made to application of the named ADR methods in Nigeria, United States of America, England and Wales, Hong Kong, Australia and few others.
1.5.0: METHODOLOGY
The methods employed in carrying out this research are majorly descriptive and analytical methods. The descriptive method is used in giving a detailed outlook and mode of operation of litigation and the named methods while the analytical method is used for the appraisal of these same methods. In the light of this, materials used for the research are obtained from both primary and secondary sources. One of the primary sources being the Matrimonial Causes Act, 1970 under Nigeria jurisdiction while the secondary sources include textbooks, articles in journal, articles from internet, papers delivered at seminars and articles in law series.
1.6.0: LITERATURE REVIEW
It should be note worthy that this research is not an highland, neither is it totally independent of other scholarly work. Thus, it finds its basis in the intellectual and research-based works of some legal scholars in textbooks, articles in journals and on the internet official documents e. t. c. 7 Barrister Hakeem Ijaiya,2 limiting his work to Nigeria, opined that litigation does not appear to pay much attention to the social relationship of disputing parties prior to litigation and after. He noted that the judgment arising from litigation is binding but does not resolve the initial dispute. The dispute thus remains in its original state. Bitterness and estrangement are some other shortcomings he found for litigation. H. O. Ijaiya further identified two alternative methods to litigation. These are conciliation and reconciliation. Reconciliation, as provided for by S. 11 (1) MCA3 , he stated, is an alternative to litigation which gets to the root of the initial dispute of parties but he probably did not see anything wrong with hostile atmosphere of the court where reconciliation is sought to be effected. This research has dealt with the issue of hostility of the court that appears not to enhance reconciliation as good as it is. He opined that conciliation is a better option in that it makes parties deliberate their issues themselves with a third party only facilitating the process of deliberation. He however noted that conciliation is applied to commercial disputes only in Nigeria but failed to point out that it is applied to matrimonial disputes in other jurisdictions aside Nigeria. No other alternative was mentioned by him aside 2 Ijaiya H., ‘Alternatives to Adjudication in Settlement of Matrimonial Disputes’ (2004) vol. 1 No. 5 UDUSLJ. P 79-93 3 Matrimonial Causes Act 1970, Cap. M7 LFN 2004 8 the two he mentioned. This research has gone far to identify other alternatives and the jurisdictions where they are being applied to marriage disputes and how they are being applied. As if in dilemma, Ijaiya in the concluding part of the article went on to give recommendations for improving litigation of marriage disputes not minding that he had already pointed out alternatives to litigation. This research instead gives recommendations for improving ADR. Cristine Piper4 , identifying divorce mediation as an alternative to litigation, stated that aside the reduced cost, the most compelling argument for mediation has been in relation to the benefits for children of their parent using mediation. But as part of his appraisal of divorce mediation, he was quick to note that divorce mediation is not good for all divorce cases, especially where the woman has been domestically abused. Piper however did not proffer a way out in such situations. He further addressed the issue of norms by opining that divorce mediation should have norms not necessarily different from those guiding litigation. But will applying norms guiding litigation applicable to mediation not make mediation a replica of litigation? This research strongly agrees that ADR processes be regulated but not in such manner that will destroy its flexibility. 4 Piper C., ‘Norms and Negotiation in Mediation and Divorce’ in Michael Freeman (ed), ‘Divorce: Where Next?’ (1996) Dartmouth Publishing Company Limited. P 63-88 9 Michael Noone5 merely discussed mediation in relation to resolving marriage dispute as a process to litigation rather than an alternative to adjudication. In the process, he identified mediation and conciliation as two words used interchangeably but pointed out the thin line of difference between them. In conciliation, the conciliator makes recommendations to parties while a mediator does not suggest solutions to parties but merely facilitates the mediation process. Mediation should be acknowledged as an alternative put in place to remedy the shortcomings of litigation and not seen as a sole process as Michael did. This research has done this. Ellie Stoddard6 identified collaborative divorce as one of the alternatives to litigation and further gave a detailed description of how it is applied to matrimonial disputes. He noted that the alternative addresses the three dimensions of divorce: legal emotional and financial, which are handled by an attorney, mental health/child specialist and a financial specialist respectively. However, since he did not identify any flaw in collaborative divorce, he did not mention how its use can be improved upon. This research however did the two. 5 Noone M., ‘Mediation’, (1996) Cavendish Publications Limited. 6 StoddardE.,‘CollaborativeDivorce-AHealthierAlternative’ accessed on 12 July, 2010. 10 An article from the free encyclopedia7 , like Ellie Stoddard, gave an overview, features and mode of operation of collaborative divorce. It stated that it is an alternative to litigation and it employs a team approach in that parties work together with their lawyers, financial and mental health professionals to deal amicably with the emotional, legal and financial aspects of divorce. The article further gave an analysis of how effective the alternative is in some jurisdictions and some of its organizations. The article however painted a flawless collaborative law perhaps, because of the advanced jurisdictions the article is limited to. Some flaws are fished out by this research and recommendations given to remedy them. A resource from the internet8 surprisingly espoused how arbitration, as adversarial as it is, can be employed in resolving marriage disputes. This resource explained that a divorce or separation case is mutually submitted by both parties to dispute to a neutral arbitrator who hears from both parties, receives evidence from them and decides like a judge. An arbitrator’s decision (award) may either be binding or non-binding based on the parties’ choice. 7 “Collaborative Law”, accessed 13 July 2010 8 ‘Divorce and Arbitration’, accessed on 16 October,2010 11 Howbeit, the article sheds the fact that arbitrators can at times be bias and as such abuse the flexibility of the process. This aspect is recognized and remedied in this research. The Matrimonial Causes Act9 is used to account for the details about how litigation is employed in resolving marriage disputes.
1.7.0: DEFINITION OF TERMS
Award: This is the decision rendered by an arbitrator upon a dispute submitted to him.
Alternative Dispute Resolution: This means a process of resolving an issue susceptible to normal legal process by agreement rather than an imposed binding decision.
Arbitration: This is the reference of a dispute (marriage dispute in this context) to an impartial third party, chosen by parties to it, who agrees in advance to abide or not to abide by the arbitrator’s award, issued after a hearing at which both parties have opportunity to be heard. 9 Matrimonial Causes Act 1970, Cap. M7 LFN 2004 10 Blacks’ Law Dictionary, 1979 (6th edition) 125 11 Henry B. and Arthur M., ‘ADR Principles and Practices’, (2nd (ed), Sweet & Maxwell, London 1993) P 12
Collaborative Divorce: This is a family law process enabling couples who have decided to separate to work with their lawyers and other few family professionals in order to avoid uncertain and unfavourable outcome of the court.
Custody: It is the care, control and maintenance of a child which may be awarded by a court to one of the parties as in a divorce or separation proceedings or after.12 Divorce: This is the legal separation of a man and his wife, effected by the judgment or decree of a court and either totally dissolving the marriage (absolute) or suspending its effect, so far as it concerns the cohabitation of the parties.13 Divorce Mediation: this is an ADR process, whereby the parties are assisted by a trained and skilled third party, who facilitates confidential communication and negotiation between the disputing parties to reach a voluntary and mutually agreeable divorce resolution.
Facilitation: it is a means of helping two disputing parties negotiate issues arising from their dispute. In ADR processes, this is usually performed by a neutral third party, who advises and makes parties realize the consequences of their options/decisions rather than telling them what to do. 12 Black’s Law Dictionary,347 13 ibid 480 14 ‘Divorce Mediation,’ accessed on 16 October, 2010
Judicial Separation: it is a legal severance of a man and his wife by a decree of court that is less complete than a divorce. It is a limited divorce.
Maintenance: this is the supply of necessaries such as food, clothing and housing, which may be temporarily or permanently ordered by court to be supplied by either party to the other or to their children on a petition for divorce or judicial separation. Marriage: This is, as defined by Lord Pezance, a voluntary union for life of one man and one woman, to the exclusion of all others.
16 1.8.0: CONCLUSION
It has been pointed out in this chapter that this research focuses on examining the complexities and shortcomings of litigation in marriage disputes and appraising the other methods of resolving matrimonial disputes. The method applied in carrying out the research and the sources of materials for it have been equally discussed. Some terms peculiar to the research have been vividly explained. What the research aims at achieving has been stated likewise. Having stated all these, the subsequent chapter, being the rudiment of the research, gives an outlook of 15 Black’s Law Dictionary, 762 16 Hyde v Hyde [1866] L. R 1 P & D 130 14 litigation in marriage disputes under Nigeria statutes and points out the rigours and shortcomings associated with it. 15
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