Divorce and the Right to Retain or Drop a Husband’s Name under Nigerian Law -By Ibraheem Iyanuoluwa Jelili

Abstract

The dissolution of marriage raises several legal and social questions, one of which concerns the right of a woman to retain or discard her husband’s surname after divorce. In Nigeria, where statutory, customary, and Islamic laws coexist, the issue is not governed by a single codified rule but rather by a combination of legal principles, judicial precedents, and constitutional provisions. This article examines the legal position on whether a divorced woman may lawfully retain or revert from her husband’s name. It analyses relevant statutory provisions, constitutional rights, and judicial authorities, and argues that the right to adopt, retain, or change a name is fundamentally a personal liberty protected under Nigerian law, subject only to procedural formalities and absence of fraudulent intent.

1. Introduction

Marriage, under Nigerian law, creates not only legal obligations but also social and cultural identities. One of the most visible markers of this identity is the adoption of the husband’s surname by the wife. While this practice is widely accepted, it is not strictly mandated by statutory law. Consequently, upon divorce, the question arises: is a woman legally required to relinquish her husband’s name?

Nigeria operates a plural legal system comprising statutory law, customary law, and Islamic law. Under statutory marriages governed by the Marriage Act, there is no explicit provision regulating the use of surnames during or after marriage. Similarly, the Matrimonial Causes Act; which governs divorce does not address the issue of names post-dissolution. This legislative silence has necessitated reliance on common law principles, constitutional provisions, and judicial interpretations.

2. Legal Nature of Names under Nigerian Law

Under Nigerian law, a person’s name is regarded as a matter of personal choice rather than strict legal prescription. At common law, any individual may adopt and use any name, provided it is not for fraudulent purposes. This principle has been consistently applied in Nigeria.

In Aduba v. Aduba (2018) LPELR-45708(CA), the Court of Appeal affirmed that the use of a husband’s surname by a wife is a matter of choice and not a legal obligation. The court emphasized that marriage does not extinguish a woman’s legal identity or autonomy over personal matters such as her name.

Furthermore, Nigerian courts have recognised that a change of name does not require legislative approval but is typically effected through a deed poll and publication in a national newspaper or official gazette.

3.0 Constitutional Dimensions

The right to retain or change a name engages fundamental rights under the Constitution of the Federal Republic of Nigeria 1999 (as amended).

3.1 Right to Private and Family Life

Section 37 of the Constitution guarantees the right to privacy, which encompasses personal identity. The choice of a name forms part of an individual’s private life, and any attempt to compel a woman to drop her husband’s name after divorce may constitute an infringement of this right.

3.2 Freedom from Discrimination

Section 42 prohibits discrimination on the basis of sex. Imposing a legal obligation exclusively on women to change their surnames after divorce, when no such obligation exists for men, could be construed as discriminatory and unconstitutional.

4.0 Statutory Framework and Silence of the Law

4.1 The Matrimonial Causes Act

The Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria 2004 governs divorce proceedings but does not provide for mandatory name changes upon dissolution of marriage. This omission suggests that the legislature did not intend to regulate personal identity in this context.

4.2 The Marriage Act

Similarly, the Marriage Act, Cap M6, LFN 2004 does not impose any requirement on a woman to adopt her husband’s surname at marriage or relinquish it upon divorce.

5. Customary Law Perspective

Under customary law, the adoption of a husband’s surname is largely cultural rather than legal. In many Nigerian societies, a woman is identified with her husband’s family; however, customary practices vary widely and are not uniformly binding.

Importantly, customary law is subject to the repugnancy test, meaning any custom that is contrary to natural justice, equity, and good conscience will not be enforced. Therefore, a custom compelling a woman to relinquish her name against her will may be invalid.

6. Case Law

Judicial decisions in Nigeria have consistently upheld the autonomy of individuals regarding their names.

In Aduba v. Aduba (supra), the Court of Appeal held that:

“The adoption of the husband’s surname is not a legal requirement of marriage but a matter of choice.”

This position aligns with earlier common law principles that recognise the freedom of individuals to adopt and retain names of their choosing.

7. Practical Procedures for Change of Name

Although the law permits flexibility, formal recognition of a change of name typically requires:

1. Execution of a Deed Poll

2. Publication in a national newspaper

3. Registration with the relevant authorities (e.g., National Identity Management Commission, banks, etc.)

A divorced woman who wishes to revert to her maiden name may follow this procedure. Conversely, one who wishes to retain her husband’s surname is not required to take any legal action, unless for administrative updates.

8. Social and Policy Considerations

Beyond legal principles, societal expectations often influence decisions regarding surnames. Some women retain their former husband’s name for reasons such as:

• Continuity with children’s surnames

• Professional identity and reputation

• Social convenience

However, these considerations remain personal and do not alter the legal position.

9. Conclusion

The Nigerian legal framework does not impose any obligation on a divorced woman to either retain or relinquish her husband’s surname. The choice remains a matter of personal discretion, grounded in common law principles and protected by constitutional rights. Judicial authorities affirm that the adoption of a husband’s name is voluntary, and its retention after divorce does not constitute a legal wrong.

In conclusion, the right to a name is an aspect of individual identity and autonomy. Nigerian law, in line with modern legal developments, upholds this right, allowing women the freedom to decide whether to retain or drop their husband’s name after divorce.

References

1. Constitution of the Federal Republic of Nigeria 1999 (as amended), ss. 37, 42.

2. Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria 2004.

3. Marriage Act, Cap M6, Laws of the Federation of Nigeria 2004.

4. Aduba v. Aduba (2018) LPELR-45708(CA).

5. E. I. Nwogugu, Family Law in Nigeria (Revised Edition, HEBN Publishers).

6. A. Oyewo, “Name and Identity in Nigerian Law,” Journal of African Law (2015).

7. Black’s Law Dictionary (11th ed.), definition of “Name” and “Deed Poll.”

I am Ibraheem Iyanuoluwa Jelili, a 500-level Law Student at Ahmadu Bello University, Zaria, and a Member of the International Law Association, Nigeria Branch. I hold a Diploma in Law with Distinction from the same prestigious institution.

My areas of interest include Oil and Gas Law, International Law, Intellectual Property Law, as well as Research, Article writing, Leadership, and Advocacy.

I may be contacted via the following channels:

 Gmail:- ibraheemiyanuoluwa913@gmail.com 

WhatsApp number:- 09023185916