3.1 ESTUDIO DE NORMATIVIDAD CONSTITUCIONAL (2008) RESPECTO A LAS GARANTÍAS, DERECHOS Y DEBERES DE LOS MENORES DE
3.9. INIMPUTABILIDAD PENAL DEL MENOR.
CONTENTS 1.0 Introduction 2.0 Objectives 3.0 Main Content
3.1 Invariable and Variable Consequences of Marriage 3.1.1 Invariable Consequences of Marriage 3.1.2 Variable Consequences of Marriage 3.2 Consortium
3.3 Sexual Intercourse
3.4 Enticement and Habouring 3.5 Loss of Right to Consortium 4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment 7.0 References/Further Reading
1.0 INTRODUCTION
The previous units of this study showed how a valid engagement and a valid marriage come into existence. They also showed that a marriage is void or voidable if the prescribed requirements are not met. You must have learned how a valid marriage comes into existence. The present unit deals with the consequences of a valid marriage. The consequences of a marriage can be divided into variable and invariable consequences.
2.0 OBJECTIVES
At the end of this unit you should be able to:
distinguish between the variable and invariable consequences of marriage
list the invariable consequences of marriage explain what each invariable consequence means explain how marriage affects the status of the spouses.
3.0 MAIN CONTENT
Statutory marriage confers on the husband and wife rights and obligations that are peculiar to persons who have acquired a status. The
rights and obligations, relate to consortium, maintenance, property and other civil matters
3.1 Invariable and Variable Consequences of Marriage 3.1.1 Invariable Consequences of Marriage
These are the consequences of marriage which come into being automatically by operation of the law and which cannot be excluded by the parties to the marriage. These consequences mainly concern the person of the spouses e.g. “Tade married Seun. As a result of the conclusion the marriage, Tade and Seun both gain the status of being married”. The parties can do nothing about this change of status of being married.
3.1.2 Variable Consequences of Marriage
These are consequences of marriage which can be agreed upon and/or excluded before hand by the parties to the marriage. These consequences mainly affect the estates of the spouses and the control they have in this regard.
At marriage, a wife may use her husband’s surname or in some cases may not due to professional and other reasons. See Re fry (1945) Ch 348. The change of name by a married woman is effected by custom.
There is no legal obligation to change her name to that of her husband on marriage. The name taken by a woman at marriage may be retained by her even after the marriage has been brought to an end either by divorce or death of the husband as was held in Frendall v Godsmith (1877) 2 PD 263, 264. A husband has no right to stop his divorced wife from using his name unless she is doing so for the purpose of defrauding him or others.
3.2 Consortium : Omnis Vital
At marriage the spouses owe each other a number of duties which are collectively referred to as consortium. Each spouse has the right to the other’s consortium. Consortium can be described as the “living together as husband and wife with all the incidents that flow from the relationship”. Consortium is a name for what a spouse enjoys by virtue of a bundle of rights, some of which are hardly capable of precise definition. The duties which spouses owe each other in their domestic life are not fixed. They vary according to the particular circumstances of each marriage.
SELF ASSESSMENT EXERCISE 1
Distinguish between the invariable and variable consequences of marriage.
3.3 Sexual Intercourse
The parties owe each other the duty to consummate their marriage.
Failure to do so arising from the impotence of a spouse may constitute a ground for nullity as provided in section 5(7) (a) Matrimonial Causes Act. The duty to have mutual sexual intercourse does not terminate with the consummation of the marriage. It continues for the duration of the marriage. Impotence, which is subsequent to the consummation, does not constitute a ground for nullity. A spouse while under the duty to have sexual relation is not bound to submit to excessive sexual demands of the other spouse which may be detrimental to his or her health. If the sexual demands or the willful refusal of one party to have intercourse injures the health of the other, such conduct may be an evidence of the irretrievable breakdown of the marriage under Section 15(2)(c ) of the Matrimonial Causes Act. Marriage itself denotes consent of the spouses to sexual relations therefore a husband cannot be guilty of raping his wife. However, if the husband in the exercise of his right to have intercourse uses force or violence, he may be guilty of wounding or causing actual bodily harm to the wife.
3.4 Enticement and Harbouring
Enticement occurs when a third party without just cause persuades a wife to live apart from her husband. As was stated by Green LJ in Place V Searle (1932)32 KB 487 and adopted in several other cases by the West Africa Court of Appeal and Nigerian Courts:
It is the duty of the wife to reside and consort with her husband. This is a duty which she owes to him and a person who tempts and entices her to violate this duty commits a wrong towards the husband for which he is entitled to recover damages unless the person who harboured her acted from principles of humanity to protect her from her husband’s ill- treatment in which case no action can be maintained even though it should turn out that the wife’s allegation was unfounded.
Harbouring on the other hand occurs if after the wife has been enticed or persuaded to leave her husband, she is maintained and encouraged to continue to do so by the enticer.
The injury done the husband in either case is the loss of the wife’s consortium, that is, the association between husband and wife which embraces companionship, love, affection, comfort, mutual services and
sexual intercourse. In order to succeed, the plaintiff must prove that it was the defendant’s acts of enticement which caused his wife to cease cohabiting and consortium with him. There must therefore be a positive and unambiguous act on the part of the defendant which resulted in the wife leaving her husband.
Thus, the husband after celebration of a marriage is entitled to the consortium of his wife and therefore has a right of action in tort against anyone who lures her away from him or harbours her after she has left the home. The wife on her part is entitled to the protection of her husband and the provision of the necessaries of life. She is therefore entitled to sue anyone through whose act her husband suffers death or injury which incapacitates him from performing the above stated function.
In Roland Krifa v Magi Gbodo, Suit No W/24/1969, the plaintiff claimed against the defendant £600 being special and general damages suffered by him when the defendant enticed away and harboured his wife, Florence, against his will.
SELF ASSESSMENT EXERCISE 2
Describe the concept of consortium.
3.5 Loss of Right to Consortium
The right of a spouse to the consortium of the other may be lost if
1. The spouses mutually consent to live apart. Such agreement may be in a formal document known as a separation of consortium.
2. An order to judicial separation granted by a court of competent jurisdiction dispenses with one of the most fundamental aspects of consortium which is co-habilitation. It relieves the spouses of the obligation to cohabit.
4.0 CONCLUSION
This unit has considered the legal consequences of marriage which can be agreed upon by the parties and the others that come into being automatically by operation of law and which cannot be excluded by the parties to the marriage.
5.0 SUMMARY
This unit has taught:How to distinguish between the variable and invariable consequences of marriage
What the invariable consequences of marriage are The invariable consequences of marriage.
6.0 TUTOR-MARKED ASSIGNMENT
1. What does the status of being married involve?2. List the invariable consequences of marriage.
3. Distinguish between the invariable and the variable consequences of marriage.
7.0 REFERENCES/FURTHER READING
Sagay, I. (1999). Nigerian Family Law. Lagos: Malthouse Press Limited.
Aderibigbe, Remi. Family Law in Nigeria, Lagos: Codes Publishing.
Nwogugu, E. I(1974). Family Law in Nigeria. Enugu: Heinekens Publications.
Matrimonial Causes Act, 2004.
1999 Constitution of Nigeria.