CASES ON DIVORCE IN NIGERIA
There are several cases on divorce in Nigeria, which the court upon hearing the petition for the decree of dissolution, has given judgment that the marriage has broken down irretrievably. We shall discuss a few of these cases in this write-up.
Divorce puts an end to a legal marriage. The first and most important factor to bear in mind is that the marriage must be at least 2 years old before a petition for divorce can be instituted. This is in line with the provisions of Section 30 of the Matrimonial Causes Act 1970 which states that;
“subject to this section, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the court”.
However, if a marriage is less than two years, the permission of the court must be sought and obtained to institute a divorce case in Nigeria. There is technically only one ground for the petition of divorce in Nigeria, which is – the irretrievable breakdown of the marriage. This ground with the particulars to be proved by the Petitioner to file a petition was expressly stated in Section 15 of the Act, which states that;
“a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented by either party to the marriage upon the ground that the marriage has broken down irretrievably”
The Matrimonial Causes Act enacted in 1970 (now Cap. M7 Laws of the Federation 2004) governs marriages, marital breakdown and the general welfare of children upon dissolution of marriage in Nigeria. The court that has the power and authority to dissolve a marriage under the Act is the High Court of any state of the Federation.
It is also worthy of note that a person domiciled in any state of the Federation has his domicile in Nigeria and for that purpose can institute divorce proceedings under the Act in the High Court of any state of his choice whether or not he is resident in that particular state or not.
In the decided case of INNOCENT UGWUMBA ELUWA V FLORENCE OGADINMA ELUWA (2013) LPELR-22120 (CA), The petitioner presented a petition for the dissolution of his marriage with the Respondent at the High Court of Akwa Ibom State, sitting at Eket, on grounds of cruelty, intolerable behavior, scandal, incompatibility or irreconcilable differences, which led to the irretrievable break down of the marriage. The Respondent filed an Answer to the petition and cross-petition against the Petitioner, who filed a Reply and Answer to the Cross Petition.
The petition and cross-petition proceeded to trial during which each of the parties testified in support of their respective cases. On the 8th of February, 2012, the High court in delivering its judgment, dismissed the Petitioners petition and allowed the cross-petition by the Respondent thereby dissolving the marriage by a decree Nisi. Custody of the two children of the marriage was granted to the Respondent with unrestricted right of access to them by the Petitioner. The Petitioner was also ordered to pay a monthly maintenance allowance of N250, 000.00 to the Respondent.
Aggrieved and dissatisfied with the decision by the High court, the Petitioner filed an appeal against the decision of the trial court. The notice of appeal contained three (3) grounds to wit;
- Error in law: that the trial judge erred in law by holding that the cross-petition of the Respondent succeeded when the Respondent filed no cross-petition. All that the Respondent filed throughout the trial was Answer to the Petitioner’s petition and although the Respondent used the words “Cross Petition” in the heading of her Answer to the petition, but no area of the said Answer could be said to be a cross-petition that can stand independently or be sustained as a cause of action upon which the judgment could be granted.
- The second ground for appeal that the trial judge erred in law by holding that the petition of the petitioner failed because the Petitioner could not prove his allegation against the Respondent as set out in Section 15 of the Matrimonial Causes Act.
- The third ground for the appeal was on the ground of wrongful evaluation of evidence that lead to the miscarriage of justice.
The Court of Appeal in adjudicating the notice of appeal upon examination of the records of appeal held that under the Matrimonial Causes Act, a court cannot dissolve a marriage unless the court can hold that the marriage has broken down irretrievably based on the proof of at least one of the particulars stated under Section 15(2) of the Act.
The court held that the petition filed by the Petitioner was copious and ambiguous with lengthy paragraphs and pages, as a result of that the ground for the petition was buried within the expansive paragraphs of the petition. Finally, Mohammed Lawal Garba, JCA in delivering his judgment stated that he found no merit in the Appellant’s issue and held consequently that the issue is resolved against the Appellant and the appeal was dismissed accordingly.
In the reported case of PRINCE AMAH v. MRS. VICTORIA AMAH (2016) LPELR-41087(CA), the petition was filed in the High Court of Abia State, in the Aba Judicial Division. The Petitioner initiated a Petition against the Respondent where he sought for the following relief;
- A Decree of Dissolution of marriage between the Petitioner and the Respondent on the grounds that the marriage has broken down irretrievably.
On the particulars of facts relied on by the Petitioner, as constituting the grounds that the marriage had broken down, the Petitioner alleged that the Respondent had always behaved in a manner that he found it intolerable to live with her, he listed that he behavioral pattern consisted of persistent nagging, quarreling and fighting, diabolical means and alleged poisoning.
The Respondent in return filed an Answer to the Petition served on her while denying most of the allegations and assertions made by the Petitioner. She stated that the Petitioner after filing the Petition refused to make provisions for her and the child of the marriage, while she had made all efforts for reconciliation which was constantly rejected by the Petitioner. The Respondent did not want the marriage which was then above two (2) years before the Petition was filed to be dissolved. In her Answer, she sought an Order dismissing the Petition for non-compliance with the Matrimonial Causes Act, that no certificate of marriage was affixed to the petition and the court lacked the jurisdiction to entertain the petition. The Respondent further filed a cross petition asking for reliefs.
Upon trial and examination of the facts before court, the trial judge while dismissing the petition of the petitioner held in favour of the Respondent and granted the reliefs she sought. The Petitioner aggrieved by the decision filed a notice of appeal on six grounds before the Court of Appeal.
The appeal court in granting judgment held that Appeal succeeds in part and the Judgment of the Hon. Justice N. C. Otti of the Abia State High Court, which Judgment was delivered on the 16th of December, 2010 was set aside.
In conclusion, it is important to know that there is an important caveat in the law against the institution of divorce proceedings in Nigeria, which is that couples ought to have lived together for a minimum of two years before they can file for a divorce. If they have lived together for less than two years, the leave of the court must be sought before filing the petition.
Also for a divorce petition to be sustained in Nigeria, it must be filed in accordance with the Matrimonial Causes Act, which makes provisions for the grounds of divorce and particulars to be proved.
By Family Law Department at Resolution Law Firm, Nigeria