The Cost of Leaving

She decided two years ago. What she has been doing for two years is arithmetic.

Rent, in the kind of place she would be willing to bring the children to, payable a year in advance because that is how it is done. Fees for three, and the youngest is in the expensive years. Transport she has never paid for herself. A deposit for a shop, if the shop is the plan.

Against that: what the business clears in a good month, which is not every month; what her sister could lend and how long that would take to repay; and a figure she has heard from a cousin for what a lawyer costs, which she suspects is wrong in the optimistic direction.

Everything she is entitled to under Nigerian law is on the other side of a process she cannot begin until the first column is solved. She knows what the law says. That is not the constraint.

(A constructed illustration. The pattern is ordinary; the person is not real.)

The law decides what she is entitled to. Her arithmetic decides whether she can wait for it.

This cluster has so far examined what happens when a household reaches an institution. This essay examines the period before it does, because that period decides how many households ever get there.

The sequence in the cold open is the ordinary one. The decision is made privately and long in advance. It is then held, sometimes for years, against a financial constraint. Only when the constraint is solved does anybody consult a lawyer, and by then a great deal has already been settled by default: who is in the house, who holds the documents, who the children live with, whose name the assets are in.

The law has almost nothing to say about that period, and it is the period in which the outcome is largely fixed. That is the subject of this page.

There is an asymmetry in that period which shapes almost everything afterwards, and it is worth naming because it is structural rather than personal. The party who leaves incurs all five of the costs set out below. The party who remains incurs none of them: the same house, the same possessions, the same documents, the same school run, and no advance rent. Whatever the merits of the underlying dispute, the law meets the two of them in materially different positions, and it meets them in those positions because of a decision taken in one week under pressure. Nothing redistributes that starting advantage; every remedy in this essay is applied on top of it.

One distinction must be made at the outset and not blurred into the rest. Where a household involves violence, threats, confinement or harm to a child, the analysis in this essay is not the applicable one. That is not a question of the economics of exit; it engages the criminal law and the protective jurisdiction, including the Violence Against Persons (Prohibition) Act 2015 and its state equivalents, which operate on a different timetable, through different institutions, and without waiting for anybody’s arithmetic. Naming the correct register is the first professional duty in such a matter, and treating it as a maintenance question is a serious error.

Exit is not one expense. It is five, arriving in sequence, and each one is capable on its own of stopping the process.

Against those five costs, the powers are real and worth stating precisely.

Under the Matrimonial Causes Act the High Court may order maintenance for a spouse, maintenance pending suit, and orders as to the custody, guardianship, welfare, advancement and education of the children of the marriage, alongside the settlement power discussed in Sibling 06. The welfare of the child is paramount in every decision affecting a child.

Maintenance for a child does not depend on the marital status of the parents. A father’s obligation to maintain his child runs from parentage, not from a certificate, and it is enforceable in respect of a child born outside any marriage exactly as for a child born within one — subject, as always, to parentage being established, which is the subject of Sibling 03. This is one of the most useful propositions in the whole cluster and it is very widely misunderstood.

Two features of these powers are underused. The first is that terms agreed between the parties can generally be embodied in an order of the court, which converts a family settlement from a promise into something enforceable without turning the matter into a contest. A negotiated outcome recorded properly is worth considerably more than the same outcome recorded in a family meeting, and it costs a fraction of a contested hearing. The second is that provision need not be periodic. Where a respondent’s income is irregular but an asset exists, a lump sum or a transfer of a specific asset avoids the enforcement problem described as Cost Five entirely, because there is nothing left to collect month by month.

Where the marriage was customary, dissolution proceeds in the customary courts, whose powers over property are narrower, as Sibling 06 sets out. The welfare principle nonetheless governs the children, and a claim for a child’s maintenance does not depend on the forum in which the marriage was dissolved.

Where Islamic personal law applies, the wife’s entitlements on dissolution and the father’s maintenance obligation are governed by that system through the Sharia courts, described here as itself and not as a variant of the others.

Sibling 06 explains why property claims in Nigeria are difficult: no community of property, a contribution requirement, and title documents that usually carry one name. The conclusion most people draw from that is that there is no remedy. The conclusion a practitioner draws is different.

Property claims are one-off, evidentially heavy and expensive. Maintenance claims are recurring, evidentially lighter, and rest on need and means rather than on tracing a contribution made in 2003. A monthly sum ordered for the maintenance of three children until they complete their education is capable, over its life, of exceeding the value of a half share in a house — and it does not require anybody to prove who paid for the roof.

Two consequences follow. The first is that the strongest claim in many Nigerian matrimonial matters is the children’s, not the spouse’s — a pattern that recurs throughout this cluster, on death as on separation. The second is that a matter run principally as a property fight may be run in the wrong currency.

The qualification is Cost Five. A recurring order is worth its enforceability, and against an untraceable income it may be worth very little. Which remedy to pursue is therefore a question about the respondent’s finances rather than about the law, and it should be answered before the pleadings are settled rather than after.

An entitlement that arrives in three years is not a remedy for a person who must decide this month.

The charter of this field states that power governs access, wealth governs independence, intimacy governs continuity, and law determines legitimacy and consequence. This is the essay in which the second of those is literally true rather than figuratively so.

Every entitlement described in this cluster is reachable in proportion to a person’s ability to fund the first year of pursuing it. That is not a criticism of the courts and it is not a reason to expect less of them. It is a description of how the system meets the household, and it has practical consequences that are worth stating for people who are not in difficulty and do not expect to be.

Independent income is the first of them. A spouse with earnings of her own, in her own account, has options at every stage of this essay that a spouse without them does not have, whatever either of them is entitled to. This is true of provision for widows in Sibling 08 for exactly the same reason.

Assets in her own name are the second. Property held by a spouse in her own right is not part of the contest — the point made in Sibling 08 as Claim Three and in Sibling 06 as Asset Two. Joint title on the matrimonial home and sole title on whatever she acquires herself are the two cheapest protections available in a Nigerian marriage.

A trust for the children is the third, and it is the one families overlook. School fees settled on trust are funded whatever happens between the parents, without an application, an order or an enforcement. The education trust essay in the family governance cluster sets out how such a provision is structured, and Sibling 09 of this cluster takes the instrument apart.

And records are the fourth, for the reasons given in Sibling 06. A person who can account for what she earned, what she paid and what she contributed is a person whose claims can be proved rather than asserted.

None of this is advice about whether to stay in a marriage, which is not a question this publication is competent to address. It is an account of what determines whether the answer is available to be chosen.

The law will tell her what she is owed. Only her own money will tell her whether she can afford to be owed it.