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Disputes arise between members of the family due to disagreement over certain matters, and this may lead to a form of disharmony often tagged family disputes. Family disputes may be caused by disagreements over the rights, duties, and liabilities of each member of the family; they may also be caused by bad interpersonal relationships between members of the family, and such disputes may also be a result of custody of children and maintenance of a spouse in the case of a dissolved marriage1.
Generally, the Arbitration and Mediation Act does not expressly provide for arbitration in family disputes. Arbitration in Nigeria is generally used to settle commercial disputes because commercial disputes require quick dispensation, privacy, and confidentiality. However, family disputes require more privacy, confidentiality, and quick dispensation. Litigation has however, has not been able to protect the secrecy that family disputes require. This is because the courtroom is open to all (the media inclusive) except in a few cases where matters are heard in camera; although case files are still readily available to the public. ADR Mechanisms other than arbitration have tried to protect the secrecy of family disputes, but due to their non-binding nature, some of such decided matters still end up being court matters2. This is rare in the case of arbitration because it is final and binding3. This article examines the arbitrability of family disputes, the benefits and challenges of arbitrating family disputes
Arbitrability of Family Disputes.
Arbitrability refers to the types of disputes that parties can validly submit to arbitration for resolution. In Nigeria, the Arbitration and Mediation Act 2023 provides the general legal framework for arbitration, emphasizing that disputes must be capable of settlement by arbitration under Nigerian law. Section 58 of the Arbitration and Mediation Act 2023 provides that a court may refuse to enforce an arbitral award if the subject matter is not capable of settlement by arbitration under Nigerian law or if the award is against public policy.
The arbitrability rule preserves the jurisdiction of the Courts in certain areas of law that are deemed to deserve a particularly accurate application of the law. This affects particularly areas of law with public policy implications, where the public interest is deemed to prevail against the freedom of the parties to regulate their own interest4. Family disputes typically include matters such as divorce, child custody, maintenance, adoption, and inheritance. Nigerian law traditionally regards these issues as non-arbitrable because they involve personal status, the welfare of children, and public interest considerations. The courts have exclusive jurisdiction over such matters to ensure the protection of vulnerable parties and uphold societal norms. For example, matters involving the welfare of children require judicial oversight to safeguard their best interests, which arbitration tribunals may not be equipped to guarantee.
Section 1(1) of the Matrimonial Causes Act5 specifically provides thus:
"After the commencement of this Act, a matrimonial cause shall not be instituted otherwise than under this Act". Section 2 (1) (a) and (b) expressly provides thus:
"Subject to this Act, a person may institute a matrimonial cause under this Act in the High Court of any State of the Federation; and for that purpose, the High Court of each State of the Federation shall have jurisdiction to hear and determine –
a) Matrimonial causes instituted under this Act; and
b)Matrimonial causes (not being matrimonial causes to which section 101 of this Act applies) continued in accordance with the provisions of part IX of this Act, so however that jurisdiction under this Act in respect of matrimonial causes within this paragraph shall be restricted to the court in which the matrimonial cause was instituted"6. These provisions have gone far to oust the jurisdiction of any arbitral tribunal from arbitrating upon proceedings like dissolution of marriage, judicial separation, and other proceedings as outlined in Section 2(2) of the Matrimonial Causes Act.
The principle of public policy in Nigerian law acts as a barrier to arbitration in family disputes. Arbitration awards that contravene public policy or fundamental rights may be set aside by courts. Family law matters often implicate public policy, especially concerning children's welfare, spousal rights, and succession. The courts' supervisory role ensures that such sensitive issues are adjudicated with due regard to statutory protections and societal values.
While traditionally, family disputes are non-arbitrable, there is a growing recognition of arbitration's role in resolving certain related disputes, such as parental conflicts, sibling rivalry, property rights, or ancillary division to family matters, provided such parties consent and disputes do not involve personal status or welfare issues.
Benefits and Challenges of Arbitrating Family Disputes.
The importance of adopting arbitration for family dispute settlement is that it has a binding nature and enhances a good relationship between the conflicting parties. Therefore, the most powerful incentive for parties to choose arbitration for resolving family disputes is undoubtedly their desire to obtain a forum that is sensitive to the real needs of the parties7. Some of the benefits are:
Party autonomy: it is at the volition of the parties to decide to go into arbitration, appoint arbitrators, decide the place of arbitration, and the rules that will guide the proceedings. Thus, the machinery of arbitration is set in motion by the parties8.
The award is binding on both parties: the decision of an arbitrator is known as an arbitral award; an award has the same status, save in some aspects, as a judgment of a court. This is why an arbitral award has been regarded as constituting res judicata as far as parties to the arbitral awards are concerned9.
Quick dispensation of justice: Arbitrating family disputes will prevent the family from unnecessary court processes, which parties find alienating; it also protects the best interest of a child and reduces tension occasioned by children who are victims of stress and tension10.
Confidentiality and privacy: Family disputes are sensitive and delicate, requiring privacy and discretion in their resolution, something that arbitration provides in its entirety.
Although Arbitration offers several benefits, various barriers and challenges undermine its full effectiveness and sustainability in Nigerian family law; some of these challenges are:
Lack of awareness and resistance to ADR (specifically arbitration): Many Nigerians are still unaware of the existence or benefits of arbitration as an alternative to litigation. There is also a tendency to view court litigation as more authoritative, which leads to resistance in accepting arbitration. For instance, in rural areas, despite informal dispute resolution methods being part of the cultural heritage, people are not as familiar with the formal process of arbitration. A survey conducted by Obi (2016) found that over 60% of respondents in Enugu State preferred litigation because they viewed it as providing more legitimacy than Arbitration11.
Limited Access to ADR services: Access to formal arbitration services is mostly concentrated in urban centers like Lagos and Abuja. Rural areas where a significant portion of the population resides lack institutional ADR facilities, making it difficult for many to use this service. For example, in Northern Nigeria, in Zamfara and Sokoto, there are very few registered ADR centers. As a result, most family disputes will go through Islamic or Customary Courts, where resolution of family disputes is informal and lacks enforceability12.
Capacity and training issues: A significant barrier to the sustainability of arbitration is the shortage of professionally trained arbitrators in family law. Many ADR practitioners in Nigeria focus on commercial law, leaving a gap in family law expertise13.
Inconsistent legal framework: the Nigerian legal system has inconsistencies between customary, religious, and statutory law, which makes it difficult to create uniform guidelines for family law arbitration. Different Courts apply different standards, making it difficult to predict the enforceability and fairness of arbitration outcomes14.
Though these challenges exist, the major challenge is the arbitrability of family disputes, as a family may undergo arbitration of its family disputes, and when the awards, if given, may not be enforced for their lack of arbitrability in accordance with statutory law and public policy considerations.
Conclusion.
Comparatively, many jurisdictions exclude family law matters from arbitration due to their sensitive nature. Nigeria aligns with this approach to protect vulnerable parties and uphold public interest. However, there is scope for legislative clarity to delineate which family-related disputes can be arbitrated, enhancing access to alternative dispute resolution while safeguarding fundamental rights. Training arbitrators in family law and establishing specialized family arbitration tribunals could also be considered to expand the scope of arbitrability responsibly.
Footnotes
1 Bello Adesina Temitayo, Arbitration Stencil as a Pathfinder for Resolving Family Disputes (PHD thesis of the Department of Private and Commercial Law, Babcock University School of Law and Security, pg1.
2 Ibid
3 Ibid, pg 3.
4G.C.Moss, 'Arbitrability of Disputes regarding Petroleum Investments in Russia and the Validity of an International Arbitral Award' (2005) quoted in " Muhammad Mustapha Akanbi, "Contending without being Contentious: Arbitrating, Arbitrators and Arbitrability' (152nd) Inaugural Lecture, Department of business Law, Faculty of Law, University of Ilorin (2014)
5 LFN Vol 8, M7-1.
6 Ibid
7 A.E. Obidimma, C.V. Okpalangwu, 'Arbitrating in Family Disputes: Benefits and Challenges'. International Journal of Comparative Law and Legal Philosophy (IJOCLLEP) 3 (2) 2021.https://www.nigerianjournalsonline.com/indec.php/IJOCLLEP accessed on the 2nd of October, 7:20 am.
8 Ibid.
9 Ibid.
10 Ibid.
11 Dr. A.U. Ruwandoruwa, 'Mediation and Arbitration in Nigerian Family Law: Assessing Alternatives to Litigation'. ISRG Journal of Arts, Humanities and Social Sciences.https://isrgpublishers.com/isrgjahss accessed on the 3rd of October, 2025, by 8:28 am.
12 Ibid.
13 Ibid.
14 Ibid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
