May 24, 2025

Master The Right Of Consortium In Nigeria: A Quick Guide.

by Eko Solicitors

Introduction to Consortium

The right of consortium is a legal concept rooted in family and tort law, referring to the rights of one spouse to the companionship, affection, assistance, services, and sexual relations of the other spouse. It becomes particularly relevant in personal injury claims where one spouse suffers harm due to the wrongful act or negligence of another, leading to a loss of these benefits.

The right of one spouse to the society or services of the other spouse is generally referred to as consortium et servitium which translates to “companionship and service”. This phrase is often used in legal contexts, particularly in the context of “loss of consortium,” which refers to damages awarded to a spouse for the loss of companionship, affection, and assistance of their injured partner. It also includes the loss of sexual relations and the impact on their marital relationship. In Nigeria, while it is not as extensively developed as in some other jurisdictions, the right of consortium is recognized within the framework of tort law and family law.

What is Consortium?

Consortium refers to the totality of rights, society or affiliation, services and help that married persons enjoy from each other. It means the love, care, comfort, companionship, affection, and assistance which each spouse in a marriage is entitled to receive from the other.

In contemporary times, it is really irrelevant which spouse plays what role in a marriage, provided that such roles are of mutual benefit to the parties and accords with the norms of marital living and togetherness. Consortium is so important that any third-party interference with that right attracts legally supported commensurate sanctions. Persons who interfere with the consortium rights of parties to a statutory marriage may be liable in damages for enticement, adultery, and contractual or tortious wrongs.

Rights of Consortium in Nigeria

In Nigeria, these rights are generally acknowledged under customary, statutory, and Islamic law, which all recognize marriage as a union involving mutual support and obligations. Some of the rights of consortium arise either out of law or custom, are as follows:

1. Marital Cohabitation:

Spouses have a legal duty to cohabit, which entails that, they are expected to maintain a common household. While this does not necessarily require living under the same physical roof at all times, ‘Cohabitation’ in this context does imply mutual agreement on residing in a home or homes mutually recognized and agreed upon by both spouses as their matrimonial residence.

This shared household may span multiple residences, potentially in different locations or even different countries, provided that at least one spouse resides in one of these homes at various times. A failure to uphold this duty may constitute matrimonial misconduct, manifesting as either desertion or willful separation depending on the circumstances and the conduct of the spouse in breach. These actions may be relied on by the innocent party to sue for either restitution of conjugal rights, judicial separation or even dissolution of marriage as provided for in sections 15(2)(d) – (g) of the MCA.

2. Sexual Relations :

This issue is a common source of marital conflict, as sexual intimacy is often considered a core aspect of the marital bond and a mutual obligation between spouses, regardless of individual moods or preferences. When one partner consistently withholds intimacy, the other may feel emotionally neglected or rejected, and in some cases, may even allege cruelty or behavior that makes it unreasonable to continue living together as husband and wife. These are valid accusations allowed by the provisions of section 15(2)(c) of the MCA. However, the right to sex must be exercised reasonably and with due regard to the other party’s health, comfort and convenience.

3. Protection:

Spouses to a marriage have a duty to protect each other against all sorts of dangers from human, natural or other causes. They have a right to shelter, food, clothing and medications necessary to ensure good health. Under the Common Law, a wife is at liberty to pledge her husband’s credit in respect of any of these necessaries where her husband fails to supply her same and the husband is liable to the creditors for such goods supplied to his wife. Section 32(3) of the Criminal Code Act, [Cap C38 LFN 2004] guarantees a full defence to a spouse who uses whatever force that is necessary to defend the other spouse being assaulted or violated in his/her presence.

Loss of Consortium

Loss of consortium refers to the loss of companionship, affection, emotional support, love, care, sexual relations, and services that a spouse would ordinarily receive from their partner. It recognizes that injury to one partner can deeply affect the other, not just emotionally but also in the daily functioning of their shared life. For instance, a spouse who can no longer perform household duties, provide childcare, or engage in marital intimacy due to injury or disability may cause real and measurable hardship for the other partner.

Legally, the right to claim loss of consortium is a derivative claim, meaning it stems from the original injury to the other spouse. If the injured party cannot recover damages perhaps due to a failed lawsuit or a finding of contributory negligence then the claim for loss of consortium typically also fails. Furthermore, this claim is usually only available to legally married couples.

Although it can be difficult to place a monetary value on the loss of emotional and relational support, courts acknowledge the profound impact such a loss can have. However, proving loss of consortium can be challenging because it often involves private and subjective aspects of a couple’s life.

As a result, these claims must be carefully presented with credible evidence to support the emotional and practical consequences of the injury. Overall, loss of consortium is a legal recognition of the deep interdependence that exists in marriage. It highlights how injury to one spouse affects both partners, acknowledging that emotional and relational losses are just as significant as physical or economic ones. While complex in its application, this concept serves as an important safeguard for the unseen, yet very real, consequences of personal injury within a marital relationship.

Conclusion

In Nigeria, section 3(1) of the MCA determines the capacity of parties to marry while the relevant sections of the Marriage Act govern procedural formalities for contracting the marriage. Thus, a marriage under the Act is void if a party to the marriage does not meet the standards set by section 3(1) of the MCA.

Whereas the validity of a marriage contracted in breach of the rules of formalities may or may not be void depending on the application of the provisions of section 33(3) of the Marriage Act. The legal effects of a valid marriage are manifold: apart from creating a special status that both parties enjoy, they also enjoy the right of consortium which includes cohabitation, sex and mutual protection. They also enjoy certain privileges and protection in criminal and civil proceedings in court guaranteed by some sections of the Criminal Code and the Evidence Act, as well as other laws which regulate contracts, torts and property rights between the parties and other third parties.

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