Dissolution of marriage is the legal term for a divorce in Nigeria. Dissolution is said to take place when two people who have been legally married, and one or both of them goes through the court process to have the marriage ended. Orders about division of property, name changes, child custody, visitation, and support can all be made in a divorce proceeding.
The application for dissolution of marriage is instituted by a Petition filed in the High Court of any state by a Petitioner seeking to bring an end to the marriage. It is important to note that Dissolution of Marriage can be filed at any state in Nigeria, as long as the Petitioner is domiciled in Nigeria.
The High Court does not grant the dissolution of marriage without the petitioner proving competent facts to support the dissolution. Hence dissolution of marriage cannot be instituted on frivolous reasons. The laws that guide divorce in Nigeria are the Matrimonial Causes Act 1970 and The Matrimonial Causes Rule 1983.
The law is clear on the grounds for divorce in Nigeria, the first and most important eligibility for dissolution of marriage is that the marriage must be at least 2 years old. This is called the two year rule which the Petitioner must meet except in certain circumstance of threat to life, then the leave of the Court must be sought.
The Act stipulates under Section 30 that a marriage under two (2) years cannot be dissolved. It provides 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 the leave of court”.
Thus to institute a petition for a marriage less than 2 years, the permission of the court must be sought by a Motion Exparte along with the petition for divorce. However, the leave of court will not be necessary in a marriage that is less than two years in the following cases;
- Where there is a willful and persistent refusal to consummate the marriage.
- The respondent has committed adultery and it is intolerable.
- The respondent committed rape, sodomy, bestiality and other unnatural acts
- Where the institution of the proceedings is by way of cross-petition.
Grounds for Dissolution
Unlike some other countries all over the world, one cannot walk out of marriage in Nigeria simply because they “fell out of love.” There is technically a sole ground for which the petition for dissolution of marriage can be instituted, which is that “the marriage has broken down irretrievably.” This means that the cause of the breakdown is so severe that the marriage cannot be saved. The ground for dissolution of marriage can be proved through these facts provided in Section 15 (2) of the Matrimonial Causes Act 1970 as follows:
- That the respondent has willingly and persistently refused to consummate the marriage. For this fact to be pleaded, the petitioner must prove that the respondent has failed to have sexual intercourse he/she, but where it is proved that sex occurred even once, the marriage will be deemed consummated and therefore the petitioner cannot rely on this ground for divorce.
- That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
- That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition. The desertion means that the respondent has abandoned the matrimonial home without justification.
- That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition does not object to the decree of dissolution being granted
- That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition
- That the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal right made under the Marriage Causes Act.
- That the other party to the marriage has been absent from the petitioner for such time and in such circumstances has to provide reasonable grounds for presuming that he/ she is dead.
It is also important that the marriage sought to be ended must be a statutory marriage. In order to ascertain that the marriage is a statutory marriage, it is important to provide a marriage certificate, or a certified true copy of the marriage certificate. Where either of these is not available, then one can provide a certified copy of the entry in the marriage register as proof of a valid marriage.
It is important to ascertain that the marriage sought to be ended is a valid statutory marriage, else the court would have no jurisdiction to dissolve the marriage. If it is a mere church ceremony that the couple underwent, then there would be no need to go to the court for the dissolution of the marriage, as there is in fact no valid marriage in the eyes of the law.
In conclusion, a petition for dissolution of marriage can be presented on the ground that the marriage has broken down irretrievably and the court upon hearing the petition will only grant the order for dissolution of marriage where the petitioner satisfies the court of one or more of the facts listed above.
BY: RESOLUTION LAW FIRM