GE v KE & Anor

A customary marriage under Onitsha Igbo law is dissolved only where the husband’s wish to divorce is communicated to and supported by his kinsmen, the two families agree to the divorce, and the bride price is returned and accepted. Waiver of the bride price is possible but exceptional and requires agreement. The court may infer a divorce from circumstantial evidence, including the established cultural practice, prolonged separation, family knowledge and conduct inconsistent with a continuing marriage. A customary wife would normally return to her family compound, but residence in the husband’s compound does not necessarily disprove divorce where family members permit it.

The applicant sought a declaration that she remained married under Onitsha customary law to the deceased, who died intestate in 2003. The first respondent, who had married the deceased in a civil ceremony in 1982, claimed to be his widow and surviving spouse. The validity of the applicant’s customary marriage in about 1952 or 1953 was ultimately accepted. The central issue was whether that marriage had been dissolved by customary divorce, probably after the death of the deceased’s father in about 1960 and before the civil marriage.

1. The court accepted that there had been a valid customary marriage between the applicant and the deceased in Onitsha in about 1952 or 1953.
2. On the evidence of customary practice, a valid divorce required three steps: the husband or his proxy had to inform and convince his kinsmen of his wish to divorce; the husband’s and wife’s kinsmen had to meet and agree the divorce; and the bride price had to be returned by the wife’s kinsmen and accepted by the husband’s kinsmen. Only exceptionally could the bride price be waived, and any waiver required agreement by the wife’s kinsmen.
3. The court accepted that a divorce would ordinarily be publicly known within the two extended families. A divorced wife would normally return to her own family, but changing traditions, family compassion, the presence of children and the husband’s absence abroad could explain her continuing residence in the husband’s compound or property.
4. The court found that lengthy separation without divorce was not recognised in the relevant Onitsha culture. The absence of direct evidence of the divorce was not decisive. The deceased’s affidavits, the family’s belief in 2004 that the applicant was divorced, the dispute over her participation in the funeral, the deceased’s failure to embrace her at the 1990 title-taking ceremony, and the prolonged separation supported the inference that a divorce had occurred after the deceased’s father’s death and before 1982.
5. The application for a declaration that the applicant remained married to the deceased was rejected. The court declared that the first respondent was legally married to the deceased at his death and was his widow and surviving spouse.