CHAPTER ONE
INTRODUCTION
1.1 Background of the Study
The concept of maintenance under statutory law is different from common law rule. Common law allows judges to decide cases based on the ruling or prior cases with similar circumstances. In the English common law, ‘tradition’, from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Traditionally, the husband had a duty to provide a safe house, pay for necessities such as; food and clothing, and a house. The wife’s obligations were; maintaining the home, having sexual relations with her husband, and rearing children. Today, the underlying concept that marriage is a legal contract still remains, but due to changes in society, the legal obligations are not the same.[1] Under the common law, in a situation where the husband fails or neglects to comply with the duty to maintain his wife, the wife automatically become an agent of necessity to the husband, capable of pleading his credit, if she has no means of supporting herself.[2]
Statutory law is written law, as decided by the legislature or other government agencies. The legislation will mainly be based on rules and regulations either mandating or prohibiting certain behaviours of the general public.[3] Under the common law, maintenance of a wife can be seen as a one way traffic. That is; the husband is under the obligation to maintain his wife. However, under the statutory laws, it is a two way traffic. A spouse is required to maintain the other spouse depending on the party in custody of the children. Under the English common law, the incidence of marriage imposes on the spouse a number of obligations one of which is; the wife’s right and husband’s duty of maintenance. This obligation on the husband arose from the fact of cohabitation and the wife’s management of the household. A husband and wife may enter into an agreement to live apart, such as separation which releases each spouse from obligation. In such a situation, if he fails to provide her maintenance and she has no adequate means of support, She becomes at common law, his agent for the purpose of obtaining necessities. Necessities here are; food, clothing, medical expenses and other basic needs but do not include luxuries. Similarly, a wife who has sufficient means of her own to purchase necessaries is not entitled to pledge her husband’s credit, as there is in fact no necessity. This is the case where for instance, she ends sufficient income to sustain herself adequately. Where she is adequately supplied with a particular necessity, the husband cannot be liable for any further supply of the same item. The husband will also avoid liability if he provides his wife with adequate maintenance.
[1] Concept of Marriage, https://www.law.cornell.edu>wex (Accessed on 26th May, 2019)
[2] J. Adams, E. E. Eja, The theory and practice of family law in Nigeria, Calabar; Wusen publishers, (2017), p. 122.
[3]What is the difference between Common Law and Statutory Law http://m.wisegeek.com/(accessed 24th may, 2019)