A Woman Answering Her Maiden Name After Marriage Can Promote Girl Child Education And Is Not An Unreasonable Behaviour That Can Warrant Dissolution Of Marriage.

The general practice in Nigeria is that when a woman gets
married she automatically assumes the surname of her spouse.

This is also widely practiced in many cultures around the world.
The name of her spouse replaces her birth surname after marriage;
in the case of the wife it is called the maiden name. This practice
has denied a lot of girl child opportunity of acquiring standard
education. In our clime so many families and parents live with
believe that sending someone to the high institution is for the
promotion of the family name.

It should be noted from the outset that since Britain colonized
Nigeria, much of English practices and customs were left with the
people of Nigeria even after the attainment of independence by the
latter. This includes the form of marriage known and adopted today
by Nigerians as “wedding”, otherwise formally known in legal
parlance as, “marriage under the Act/statutory marriage”.

Customary marriage is entirely different from the statutory
marriage. Customary marriage is governed and conducted based on the
people’s custom while statutory marriage is conducted in accordance
with the law. The Marriage Act and the Matrimonial Causes Act spelt
out in clear terms on how a valid legal marriage can be conducted
or dissolved.

The circumstances under which the court may make a decree of
dissolution of marriage are spelt out under Section 15 of
the Matrimonial Causes Act. Under Section 15
(1), the court may make a decree of dissolution on the
ground that the marriage has broken down
irretrievably. The question there to ask is, “what
are the facts or circumstances that would be held to amount to an
irretrievable breakdown of a marriage”?
Section 15 (2), provides that the court may hold
that a marriage has broken down irretrievably if, and only if, the
petitioner satisfies the court of one or more of the following
facts:

1. That the Respondent has wilfully and persistently refused to
   consummate the marriage
2. That since the marriage the Respondent has committed adultery
   and the Petitioner finds it intolerable to live with the
   Respondent;
3. That since the marriage the Respondent has behaved in such a
   way that the Petitioner cannot reasonably be expected to live with
   the Respondent.
4. That the Respondent has deserted the Petitioner for a
   continuous period of at least one year immediately preceding the
   presentation of the Petition;
5. That the Parties to the marriage have lived apart for a
   continuous period of at least two years immediately preceding the
   presentation of the petition and the Respondent does not object to
   a decree being granted.
6. That the parties to the marriage have lived apart for a
   continuous period of at least three years immediately preceding the
   presentation of the Petition.
7. That the other party to the marriage has, for a period of not
   less than one year, failed to comply with a decree of restitution
   of conjugal rights made under this Act;
8. That the other party to the marriage has been absent from the
   Petitioner for such time and in such circumstances as to provide
   reasonable grounds for presuming that he or she is dead.

Another characteristic of this marriage under the Act/statutory
marriage is right to consortium. This is right of a spouse to all
the normal relationships with his or her mate. Reference will be
made to this in latter part of this discussion.

The crux of this write up is the question whether the fact that
a woman has decides to retain her maiden name after marriage and
the husband finds it unreasonable and threatens to dissolve the
marriage. Can it be successfully linked to Section 15 (2)
(c) of the Matrimonial Causes Act as an unreasonable
behaviour?

Section 15(2)(C) OF the Matrimonial Causes Act provides
that:

(2) A court hearing a petition for a decree of
dissolution of a marriage shall hold the marriage to have broken
down irretrievable if, but only if, the petitioner satisfies the
court of one or more of the following facts: (c) That since the
marriage the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the
respondent.

The key words in the above is that “since the marriage the
respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the
respondent”. The question at this point is what determines the
petitioner’s “reasonability”

Section 16 of the Matrimonial Causes Act
provides instances in which the petitioners action will be deemed
reasonable. Section 16 of the Matrimonial Causes
Act provides that:

(1) Without prejudice to the generality
of section 15(2)(c) of this Act, the court hearing a petition for a
decree to of dissolution of marriage shall hold that the petitioner
has satisfied the court of the fact mentioned in the said section
15(2)(c) of this Act if the petitioner satisfies the court
that-

(a) Since the marriage, the respondent has
committed rape, sodomy, or bestiality; or

 (b)Since the marriage, the respondent has, for a
period of not less than two years-

• been a habitual drunkard, or

(ii)      habitually been
intoxicated by reason of taking or using to excess any sedative,
narcotic or stimulating drug or preparation, or has, for a part or
parts of such a period, been a habitual drunkard and has, for the
other part or parts of the period, habitually been so intoxicated;
or

(c)Since the marriage, the respondent has within a
period not exceeding five years-

(i)  suffered frequent convictions for crime
in respect of which the respondent has been sentenced in the
aggregate to imprisonment for not less than three years,
and

(ii)     Habitually left the
petitioner without reasonable means of support; or

(d)Since the marriage, the respondent has been in prison
for a period of not less than three years after conviction for an
offence punishable by death or imprisonment for life or for a
period of five years or more, and is still in prison at the date of
the petition; or

(e)Since the marriage and within a period of one year
immediately preceding the date of the petition, the respondent has
been convicted of-

(i)  Having attempted to murder or unlawfully
to kill the petitioner, or

• Having committed an offence involving the intentional
  infliction of grievous harm or grievous hurt on the petitioner or
  the intent to inflict grievous harm or grievous hurt on the
  petitioner;

(f) Or the respondent has habitually and wilfully
failed, throughout the period of two years immediately preceding
the date of the petition, to pay maintenance for the
petitioner-

(i) ordered to be paid under an order of, or an
order registered in, a court in the Federation, or

(ii) Agreed to be paid under an agreement between
the parties to the marriage providing for their separation;
or

(g) The respondent-

(i) Is, at the date of the petition, of unsound
mind and unlikely to recover, and

(ii)  Since the marriage and within the period
of six years immediately preceding the date of the petition has
been confined for a period of, or for periods aggregating, not less
than five years in an institution where persons may be confined for
unsoundness of mind in accordance with law, or in more than one
such institution.

 (2) Where a petition is based on the fact
mentioned in section 15(2)(h) of this Act-

(a) proof that, for a period of seven years
immediately preceding the date of the petition, the other party to
the marriage was continually absent from the petitioner and that
the petitioner has no reason to believe that the other party was
alive at any time within that period is sufficient to establish the
fact in question, unless it is shown that the other party to the
marriage was alive at a time within that period; and

(b)  A decree made pursuant to the petition
shall be in the form of a decree of dissolution of marriage by
reason of presumption of death.

It has been held that matters enumerated in Sec 16(1) are of
extremely grave nature, so that the behaviour alleged to be
unreasonable and such that the petitioner cannot be expected to
live with must be of equal gravity to those enumerated under Sec
16. This was the opinion of the court in the case of
Oye v Oye (1974) E.C.S.N.LR, 49 where the
husband- petitioner alleged unreasonable behaviour on the part of
the wife- respondent and his finding it intolerable to live with
her. Dismissing this argument, the trial judge held that the
respondent’s refusal to change her maiden name and the unproved
allegations of embarrassing and humiliating conduct of the
respondent were not such grave conduct as would amount to
unreasonable behaviour under Sec 15(2)(c).

Having considered the provisions of Section 16 of the
Matrimonial Causes Act, the two pertinent questions to ask
are;

1. Does the instances provided under the above provision include a
   woman retaining her maiden name after marriage?
2. Is Section 16 of the Matrimonial Cause Act
   exhaustive of what a petitioner can prove to show that he/she
   cannot reasonably be expected to live with the respondent? Or can a
   petitioner prove any other thing outside the list, having regards
   to the opening sentence of the section; “Without prejudice
   to the generality of section 15(2)(c) of this Act”?

Having carefully considered the provisions above, to answer the
first question I can succinctly say that a woman retaining her
maiden name after her marriage is not among the listed behaviours
which could be deemed unreasonable by Section 16 of the
Matrimonial Causes Act and answering the second question,
Section 16 Matrimonial Causes Act is not
exhaustive on what a petitioner can prove to show that he/she
cannot reasonably be expected to live with the respondent however
it serves as a guide and streamlines what an intolerable behaviour
can be.

It has been held that matters enumerated in Sec 16
(1) of the Matrimonial Causes Act are of
extremely grave nature, so that the behaviour alleged to be
unreasonable and such that the petitioner cannot be expected to
live with must be of equal gravity to those enumerated under the
Sec 16. This was the opinion of the court in the
case of Oye v Oye where the husband
Petitioner alleged unreasonable behaviour on the part of the wife-
respondent and his finding it intolerable to live with her.
Dismissing this argument, the trial judge held that the
respondent’s refusal to change her maiden name and the unproved
allegations of embarrassing and humiliating conduct of the
respondent were not such grave conduct as would amount to
unreasonable behaviour under Sec15(2)(c).

Behaviours under Section 15 (2) (c) is an issue
of logic and reasoning that is not exhaustive. That a woman has
decided to answer her maiden name after marriage cannot
successfully come under the provisions of Section 15 (2)
(c) as behaviour that is unreasonable to bring petition
for dissolution of marriage by the husband, the ground does not
fall within the list of unreasonable behaviour enshrined in
Section 16 of the Matrimonial Causes Act and as
such cannot be deemed as unreasonable. A woman has a right to
retain her maiden name after marriage. Right to a name whether to
change or retain is one of the rights of consortium. It is an
inalienable right either party to the marriage must enjoy and loss
of consortium is an actionable injury for which monetary damages
may be awarded. It offends the legal logic that a husband would
find the exercise of the woman’s right guaranteed by law in the
marriage unreasonable.

Unreasonable behaviours are characters which a basic man on the
street cannot be expected to put up with for example bestiality,
rape etc. Albeit it is the general tradition and custom in our
society for a woman to change her maiden name to that of her spouse
after marriage, where a woman under a marriage refuses to conform
to the status quo, it cannot be a reasonable ground to dissolve a
marriage conducted under the Act. The standard of proof in any of
the matters listed under Section 15 (2) of the Matrimonial
Causes Act is that established to the reasonable
satisfaction of the Court. The test of the reasonability here is
that of objectivity as stipulated in Section 82 of the
Matrimonial Causes Act. It is the woman’s right of
consortium to either change or retain her maiden name after her
marriage and that cannot be said to be unreasonable under
Section 15 (2) (c) of the Matrimonial Causes
Act.

Where there is Express Agreement between the
spouses which allows the wife to retain her maiden’s name upon
marriage, such agreement binds both parties and none shall be heard
to complain because the latin maxim volenti non fit
injuria will apply. That is to say that where the parties
must have agreed that the wife answers her name and this agreement
was done without duress on both parties; the agreement shall be an
estoppel on any party who brings action before the court for the
dissolution of the marriage on the ground that it is unreasonable
and intolerable to live with the wife. Write on also the
latin maxim of “pacta sunt servanda”

The Status of a woman can warrant her to decide
answering her maiden name, even after marriage. In other words,
where a woman has made name with her maiden name to the extent that
she is being known with that name anywhere she is found. For
instance, if she is a commissioner or Chief Judge as the case may
be. The law allows her to go ahead with such name and the husband
shall not see it as an unreasonable behaviour to bring it under
Sec 15(2)(c) MCA.

The Right to Dignity of Human Person is
provided for in Sec 34(1) of the 1999
Constitution; This section is all encompassing when it
states that no person shall be subjected to torture or to inhuman
or degrading treatment. It is inhuman for the husband to compel his
wife to bear his name because she is married to him. The essence of
marriage is for Companionship and not popularity of the man. Also,
it is, to the woman, a degrading treatment if she is compelled to
answer her husband’s name and tortured because of it. This sec
protects every citizen of the country both male and female. If the
husband actually sees his wife as his companion, he won’t be
bothered or perturbed if she chooses to answer her name especially
for professional reason or any other genuine reason.

Patriarchy and Discrimination (Violence against
Women); the patriarchy imbedded in our system and the
general practice has made men see it as custom that women must
answer their name once married to them. This is not the situation
outside the country, the choice to answer the last name of the
husband is left entirely to the woman to or not to. It is
discriminatory  nature of our system that makes men see
themselves as dominant while women are recessive or weaker and
should obey or submit. Our Constitution has through its provision
for right against discrimination ensured equality for every person
irrespective of their gender. Some International Treaties and Laws
which have become ratified in Nigeria like the African Charter,
Violence Against Women Act also contain provisions against
discriminatory acts which tend to limit the choice of a woman.

Hohfeld’s analysis; The jurisprudential value
of a woman retaining or answering her maiden’s name, even after
marriage can be illustrated and seen in Hohfeld’s analysis. Where
there is a right owned by one party, the other party has no right.
In other words, where there is right, the other party has a duty.
Applying this analysis to husband and wife, where the wife has a
right to answer her name or has no legal obligation to change her
name and answers her husband’s name, the husband has no right to
disentitle her from answering her own name. He is duty bound to
recognize, respect and protect such right. That is to say that, he
cannot bring an action against the wife because it will be an
encroachment on her right. Right according to Hohfeld is the
enforceable claim to performance either through action or
forbearance by another. Therefore, this right enjoyed by the wife
must be enforceable against any other person. To the wife, it is an
entitlement while to the husband it is forbearance.

Frivolities & Trivialities; Also, since the
court does not concern himself with frivolities and trivialities,
the court will not listen to the party (husband) who comes before
it alleging that it is unreasonable and intolerable on his part
allowing the wife to retain her name. The court sees such as
frivolities and will not be an umpire to such.

Under the civil law, a woman does not lose her ante nuptial name
through marriage especially where she has made name with that her
maiden name. Her legal name does not vary with a change in her
marital status. A wife may be known by her husband’s name socially,
but under the civil law she does not acquire his name as her legal
name. In other words, she is not compelled to adopt her husband’s
surname, and an increasing number of women in recent years have
chosen to retain their birth names after marriage.

Customarily, on marriage a wife assumes her husband’s name. it
is to be noted that custom is not necessarily a logical basis for
any law since a custom maybe arbitrary and discriminatory. Mere
longevity of an arbitrary or discriminatory practice should not
serve as justification in itself for its continuation. Any custom
that is repugnant to natural justice, equity and good conscience
should be quashed, expunged and invalid as was statutorily backed
up in Sec 1(3) of the 1999 Constitution. Also,
where there is conflict of law between the statutory law and
customary law, the former shall prevail.

Change of Name; it is a trite law that a wife
may not take her husband’s name on their marriage for professional
or other reasons. Ordinarily, change of name is one of the elements
of consortium. By custom, on marriage, a wife assumes her husband’s
surname. Consortium is said to be those rights and duties accruing
to a husband and wife. In other words, they are the marital
alliance between a husband and wife and their respective right to
each other’s support, cooperation, aid, companionship, affection,
financial support and sexual relations. Although the change of name
by a married woman is effected by custom, there is no legal
obligation to change it. Invariably, the married woman can retain
her name after marriage and will not be liable for such. This, she
is entitled to, for professional or any other reasons. That is,
where it is for professional reasons, she wishes to retain her
maiden’s name, the law allows this and will not be liable for such.
This, the husband will not see it as unreasonable or bringing it
under Sec 15(2)(c) of the Matrimonial Causes
Act.

In Conclusion, Women retaining her maiden name after marriage
can be a tool for encouraging the girl child education. In our
clime, many uneducated parents refuse sending their girl child to
school on the basis that once she gets married she’ll change her
name. If women are allowed to retain or attach their maiden name
after marriage it will give such parents encouragement to educate
the girl child and take away that fear that she will get married
and throw her maiden name away.  There are women who keep
their last names as that is what they grew up with, got all their
degrees and career recognition under, so changing names would be
damaging as far as career-networking and building a marketable
brand identity.

Changing of name are not indices of fulfilment of marriage,
people just do it as a general practice which has become
acceptable; the practice has no backing in Law. There is no Law
which provides that woman must change her maiden name, neither is
it unreasonable for one to refuse to change hers.

By Chukwunonso E Onukwube, [email protected]^[1] Legal
Practioner at Springfield Solicitors Abuja,

Anthonet Oliora-Egwuatu and Vivian Chinaza Osuji