Divorce

From the foregoing it will be seen that the fact that adultery has taken place is an inference from all the surrounding circumstances of each case. And such inference may be drawn from confessions, admissions, undue familiarity, suspicious circumstances and in proper behavior. For instance, in Roast v. Roast......, it was decided that for the purpose of ascertaining the truth, the court was entitled to consider whether the party alleged to be guilty of adultery was the author of a certain filthy literature found in her bag.

Akinyemi V. Akinyemi and Anor:LGC(25/11/1963)B

"The inference of adultery arises when there is proof of the disposition of parties to commit adultery together, with the opportunity for committing it"
Lord Bucknaster said in Ross v. Ellison ....."It is easy to suggest conditions which can leave on doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by. . . antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence".
Lord Atkin at page 21 of the same judgment said::-
"But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct."

Akinyemi V. Akinyemi and Anor:LGC(25/11/1963)B

Herein, the issue purportedly raised suo motu by the learned trial Judge is the grant of joint custody of Golden to the Appellant and the Respondent. In plethora of authorities, it has long been settled that in any matter relating to the custody or guardianship of children, the interest and welfare of the child shall be of first and paramount consideration. See OKIDE V. OKIDE (2020) LPELR-49989 (CA), YANGE V. MUSA (2018) LPELR-45269 (CA). In other words, the child’s interest and welfare is the guiding principle in an action for custody of children.
SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT, 1970 71(1) provides thus: “In the proceedings with respect to the custody, guardianship, welfare advancement or education of the children of marriage, the Court shall regard the interest of those children as the paramount consideration, and subject thereto, the Court may make such order in respect of those matters as it thinks proper.” Similarly, this Court has in the case of OBAHAYA V, OBAHAYA (2022) LPELR-57141 (PP, 19-20, PARAS. D-C) (CA) Per ONYEMENAM, JCA stated thus:
“The principle of law is settled and which is that; in proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the Court shall regard the interests of those children as the paramount consideration and subject thereto, the Court may make such order in respect of these matters as it thinks proper. See SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT.
Thus, in awarding custody of a child, the Court will consider the care of the child’s person, morally, physically, and mentally, Hence, the welfare and the interest of the child must be accorded paramountcy where an order of custody of the child is to be made. In fact, the welfare of children of a marriage is not only of paramount consideration but a condition precedent for the award of custody.
Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.” Therefore, it follows that custody imposes a responsibility that should not be taken lightly. The primary consideration would always be what is in the best interest of the child, notwithstanding any form of agreement purportedly reached by the parties prior to the proceedings in a custody matter. In deciding what order would be in the best interest of the children of the marriage, some of the factors to be borne in mind include inter alia;
(1) retention of existing position (2) personality and character of the parties (3) sex and age of the children (4) education (5) accommodation and material advantages (6) stability of home life (7) the parties conduct, etc. Usually, the retention of existing position appears to be the premier consideration. The Court should constantly bear in mind that it is mostly necessary to keep siblings together and not to split the family up more than necessary.
On the factor of accommodation and material advantages, the fact that one party is in a position to give the child a better start in life than another does not give him/her a prior claim. The happiness of a child not his material prospects would be the Court’s main concern. Nevertheless, a person’s financial position cannot be ignored entirely. The amount of time and energy that a parent can devote to the child’s care and upbringing is of utmost importance.
This may mean that a mother who can spend the whole of her time with her child will necessarily have an advantage over a father who will be out to work all day no matter the type of alternative arrangements he can make for the child especially if the child is still a minor. Furthermore, the fact that the child has lived for some time with one parent without complain may in itself be a good reason for not moving him. The stability of the child’s home is important. The Court also tries to avoid imposing yet another move on a child who had already been moved about a great deal.
PER ONYEMENAM, J.C.A.