Wills Law And Parental Responsibility By Sam Okolie | Nairalaw

Let me start by simply saying that it is the responsibility of
every parents to provide financial security for their children, and
this responsibility continues even till death, as a deceased parent
is expected to make provision for their children while making their
will. See section 2 of the Wills Law of Lagos, 2004.

However, for one reason or the other, some parents have often
failed in this solemn responsibility to make adequate financial
provision for their children, and have been woeful derelict in this
sacred and solemn responsibility, hence the need to resort to court
or other Law enforcement agency for enforcement of the maintenance
order by a child or his guardian.

The object of a maintenance order is to protect and safeguard
the welfare and well being of the children of the marriage or
children born outside wedlock. It is to ensure that a child should
have the necessary financial security and protection.

Maintenance, sometimes is also referred to as child support in
other clime, is generally seen as the amount of money which the
court may grant a party to the marriage to take care of the basic
need of that party.

Child maintenance is paid directly or indirectly by an obligor
to an obligee for the care and support of children of a
relationship that has been terminated or in some cases never
existed. Often the obligor is a non-custodial parent. The obligee
is typically a custodian parent, a guardian or the state.

The different scenarios where a child can seek for maintenance
order will b discussed below.

MAINTENANCE OF CHILDREN BORN UNDER THE ACT

This refers primarily to children whose parent contracted their
marriage under matrimonial causes Act Chapter 7. Law of the
Federation of Nigeria 2004, colloquially referred to as court
marriage. Children born under this type of marriages are protected
under the Act. Ordinarily, there will be no need for maintenance
order while the both parent of the children are living together in
matrimony, because they would ordinarily take care of their
children and provide for their financial security, however when the
parents are divorced or there is a pending proceeding for divorce,
the court would suo moto or on application by either of the party
make an order for maintenance of children of the marriage pursuant
to section 70 of the Act. By virtue of section 70(2) and 73 (1) (a)
and (b) of the matrimonial causes Act, the court may, in proceeding
for an order for the maintenance of a party to a marriage pending
the disposal of the proceedings, make such order as it thinks
proper having regard to the means, earning capacity and conduct of
the parties to the marriage and all other relevant circumstances.
The court can therefore in exercising its power under the Act may
do the following:

Order that a lump sum of weekly, monthly, yearly, or other
periodic sum be paid – see Hayes V Hayes (2000) 3 NWLR (PT 648) 276
Damulak V Damulak (2004) 8 NWLR (PT 874) 155.

It should be pointed out that a child which is above the age of
21 is not entitled to maintenance – By virtues of section 70 (4) of
the Act, the power of the court to make an order for maintenance of
the children of the marriage should not be exercise for the benefit
of a child who has attained the age of twenty one years, unless the
court is of the opinion that there are special circumstance
justifying the making of an order in that direction

Maintenance of Child Born Under Customary
Law

This refers to children whose parents contract their marriage
under the dictate and tenet of their respective customs and
traditions without getting married under the Act. Here the parents
merely celebrate their marriage in a place that is not a license
place of worship.

The children of the marriage are usually well taken care of
while the marriage is intact, but in the event that the Parents are
separated, by an order of a customary court, the court will usually
make an order for maintenance of the child taking into cognizance
the respective earning of the parents

Maintenance of Child Born Outside Wedlock

Children born outside wedlock are usually on the wrung ladder of
the society in terms of maintenance. They are usually faced with
denial and in some cases outright abandonment by one or both of the
parent. They are most often denied the necessary financial
maintenance required by either of their parents. Section 14 (2) of
the child right Act provide that every child has a right to
maintenance by his parents or guardian, in accordance with extent
of their means and the child has the right in appropriate
circumstance to enforce this right in the family court.

Thus any child who is deprived of such financial provision and
the necessary maintenance is entitled to apply to the welfare
department of any state which will in turn apply to the family
court, for an order for maintenance. In Lagos state, the criminal
code Law of Lagos, makes it a crime for a parent or guardian to
fail to provide for maintenance. By the combine provision of
section 204 and 205 of the criminal code law of Lagos, which state
that it is the duty of every person who as a head of family, or has
charge of a child, being member of his household, to provide the
necessaries of Life for such child, and he is held to have caused
any consequences which result to the life or health or of any
person by reason of any omission to perform that duty.

Thus a child who is denied the necessary maintenance can make a
formal report to the relevant Law agency to enforce his right. For
instance, there are instances where single mother will be unable to
get financial assistance from the father of her child, it is
usually advisable that a single mother who has found herself in
such quagmiretic situation, should take full advantage of the
aforementioned section and seek help at the gender section of the
police command Ikeja, Lagos, for immediate prosecution

INSTANCES WHERE PARENT CANNOT PROVIDE FOR
CHILD

There are situations where the parent of a child will be unable
to take care of their child owing to dire financial difficulties,
and other varied factors, the court will pursuant to section 51 of
the child Right Act 2003, make a corrective order in respect of the
child or the children to be placed for a specified period, not
exceeding three years, under supervision of an appropriate
supervising child development officer or of some other person
appointed for the purpose by court