UNDERSTANDING DIVORCE PROCEEDINGS AND RIGHT TO CHILD’S CUSTODY UNDER THE CAMEROON LEGAL SYSTEM
Statutory Marriage or Marriage under the Act (known in Cameroon parlance as ‘Court Marriage’), under the Common law is principally regulated by the Matrimonial Causes Act 1973 which is read alongside section 18 of law No. 2006/015 of 29th December 2006 as amended by Law No. 2011/027 of 14 December 2011 on the Judicial Organization in Cameroon and family procedure Rules 2010 (MCA). However, other legislations like the Child Rights Act etc., may also apply, depending on the circumstance.
A spouse may petition the competent High Court for the dissolution of his or her marriage on the ground that the marriage has broken down irretrievably, pursuant to any of the conditions specified in Section 1 of the MCA.
Worthy of note is that the High Court is jealously vested with the exclusive jurisdiction to hear and determine petitions for the dissolutions of statutory marriages. See S. (2) of the MCA. Interestingly, this law permits a petitioner to file petition for dissolution of marriage in the High Court of any State in Cameroon,notwithstanding the State in which the marriage was contracted. See 2(1) of the MCA.
By this provision, a spouse is at liberty to approach any competent High Court in Cameroon irrespective of where the marriage was contracted or where the partner lives, to have his/her marriage dissolved.
RIGHT TO CUSTODY OF THE CHILD/CHILDREN OF A MARRIAGE
Upon the dissolution of marriage between parties, the general rule is that both parties have equal responsibilities and rights over the child/children of the marriage, which includes, but is not limited to, the right to train, raise, influence and make decisions for and on behalf of the child/children of the marriage. See MRS. HELEN NWOSU V. HON. DR.CHIMA NWOSU (2012) 8 NWLR Pt 1301. However, the Court reserves the discretionary power to make pronouncement on children below 18 years of age considering the best interest of the child/children of the marriage.
The custody of the child/children is not bestowed automatically on any person, but will be determined based on the best interest of the child or children. Both parents have equal rights to the custody of their child/children. See NWOSU V. NWOSU (Supra).
In the case of BILYAMIN BISHIR V. SUWAIBA MOHAMMAD (KTS/SCA/KT/39/2019), the Sharia Court of Appeal held that the first thing to be considered in child custody matters is the child’s best interest, health, proper training, and the child’s education. See also Section 1 of the Child Rights Act.
Any determination of a child’s custody must be done in consideration of his welfare and must be in the child’s best interest. Interest of the parents or their desire is not a factor.
Any discrimination in the granting of custody that does not align with the welfare and best interest of the child is invalid, unlawful and can be challenged in Court.
