DIVORCE IN NIGERIA
- TYPES OF MARRIAGE IN NIGERIA
The procedure for how to dissolve a marriage in Nigeria is dependant on the type of marriage contracted. The following are the types of marriage in Nigeria:
- STATUTORY MARRIAGE
A statutory marriage is a voluntary union for life of one man and one woman to the exclusion of all others. In other words, a statutory marriage is monogamous marriage. Examples include Marriage done at the Court Registry and Marriage done in a licensed place of worship (church marriage).
The principal legislation regulating statutory marriages in Nigeria are:
- The Marriage Act;
- Matrimonial Causes Act Cap M7, Laws of the Federation of Nigeria, 2004;
- Matrimonial Causes Rules made pursuant to the Matrimonial Causes Act.
- `CUSTOMARY LAW MARRIAGE
Statutory marriage is different from Customary marriage. Statutory marriage is a union of a man and a woman, while Customary marriage is a union of a man and a woman or more than one woman. It also involves two families. Nigeria has many types of customary marriages, as diverse as the country ’s numerous cultures.
The core features of Customary marriage include:
- Parental consent, Consent of the parties to the marriage and Age
- Bride price or dowry, Prohibited degrees of consanguinity and affinity and Capacity to marry under customary law
- ISLAMIC MARRIAGE
Islamic marriage, like customary marriage, is essentially polygamous, so if the man wants, he can marry up to four wives. It has most of the characteristics of customary marriages already discussed.
The principal requirements of a valid Islamic law marriage are:
- Consent of the parties, Parental consent, Payment of the Saduquat (i.e. bride price or dowry) and Solemnization
HOW TO DISSOLVE A MARRIAGE IN NIGERIA
- Statutory marriage
A Statutory marriage can only be dissolved by a State High Court in Nigeria. The process for how to dissolve a marriage in Nigeria starts by filing a petition in court.
In order to dissolve the legal marriage, the court must be satisfied with the unsuccessful settlement option.
Dissolution by a court must be on grounds of an irretrievable breakdown of the marriage.
Section 15(b) of the Matrimonial Causes Act stipulates the meaning of “irretrievable breakdown of marriage”, in which the law stipulates that the court can only determine that the marriage has irretrievably broken down in one or more of the following facts or grounds:
- That the respondent willingly refused to consummate the marriage.
- That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- That the respondent has behaved in a way that the petitioner cannot be reasonably expected to live with the respondent
- That the respondent has deserted the petitioner for a continuous period of at least one year preceding the petition.
- That the parties have lived apart for a continuous period of at least two years preceding the petition and the respondent does not object to a decree of dissolution being granted
- That the parties to the marriage have lived apart for a continuous period of at least 3 years preceding the presentation of the petition.
- The other party to the marriage for a period of not less than one year failed to comply with a decree of restitution from conjugal rights made under this Act.
- That the other party to the marriage has been absent from the petitioner for such a time and in such circumstances, the petitioner has to provide reasonable grounds for presuming that he or she is dead (7 years).
The proceedings for dissolution of marriage is usually instituted by way of Petition filed by the person bringing the action called “the Petitioner” and the party against whom it is brought called “the Respondent”.
The Petition shall contain the following details:
- Petition or suit number, Parties and status, Full names, and occupation and address of each of the party to the proceeding
- Name of the wife immediately before marriage, Particulars of the marriage, Particulars of birth of the parties to the marriage and Particulars relating to domicile or residents of the marriage in Nigeria.
- Particulars of cohabitation of the parties to the marriage and its ceasing, Particulars of children of the parties to the marriage and the children of either party to the marriage, Particulars of previous proceedings between the parties to the marriage, if applicable and Facts relied upon but not evidence by which the facts are to be proved. Facts to support the ground.
- Condonation, connivance and collusion, Proposed arrangement for children, Custody, Maintenance and settlement of property, Reliefs being sought and Address for service on Respondent.
The Petition shall also be accompanied with other processes such as: Notice of Petition, Verifying Affidavit, Certificate relating to reconciliation, Acknowledgement of service, original marriage certificate.
The Respondent in response to the petition files an Answer or Cross-Petition.
The Petitioner may in response file a Reply to the Answer or an Answer to the Cross-Petition as the case may be.
Upon the close of pleadings, the parties move to the trial stage, where each party will give an account of his or her experience in the marriage.
The next stage is Adoption of final written address by the parties legal practitioner and finally Judgement
It is worthy of note that unless the leave of the court is obtained, no petition for dissolution of marriage may be filed within two years from the date of marriage.
Before the court approves the dissolution, the court will consider other issues, such as:
- Properties jointly owned by parties,
- Custody and the maintenance of the children of the marriage
Upon dissolution of the marriage by the court, the court then issues a Decree Nisi, which shall become Absolute after 3 months except:
- Where there is a valid appeal against a Decree Nisi, it will not become absolute except at the expiration of a period of 28 days from the day on which the appeal is determined or discontinued
- Where there are children of the marriage under the age of 16years at the date of the Decree Nisi, the Decree shall not become absolute unless the Court is satisfied that proper arrangements have been made for the welfare and in appropriate cases, the advancement and education of the children. Otherwise, the Court must be satisfied that there are special circumstances that warrant the Decree Nisi being made absolute.
Also, a Decree Nisi may be rescinded by the Court at any time before the Decree becomes Absolute:
- Upon the application of either of the parties to the marriage on the ground that the parties have reconciled.
- On the application of a party to the proceedings, if the Court is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance.
- Where an intervention takes place by the Attorney-General or other persons after a Decree Nisi has been made, the Court may rescind the Decree if it is proved that the Petitioner has been guilty.
Customary marriage & Islamic Marriage
Unlike the statutory marriage that can only be dissolved in High Court, the customary and Islamic marriage may only be dissolved at the Customary Court.
At the Customary Court, a petition for dissolution of marriage will be filed accompanied by an Affidavit stating that the marriage sought to be dissolved was conducted under native customary law.
Once the petition has been filed, the same shall be served on the Respondent before the court can proceed to hear the matter.
Apart from dissolving the marriage, the Customary Court also has the power to make an order for custody of children and order maintenance or child support.
Apart from Islamic marriage, a Christian Marriage conducted in an unlicensed worship centre may also be dissolved in the Customary Court, since same is not qualified as a Statutory Marriage.
The Customary Court proceedings are usually governed by the Customary Law of a particular state.
Finally, it should be noted that Nigeria ’s divorce process is longer than that of foreign jurisdictions.
In order for the dissolution of marriage to be successful in Nigeria, the petitioner must bring his or her petition in line with the grounds stipulated in the Marriage Proceedings Law and must meet the requirements of the law.