There are several reasons and grounds for divorce in Nigeria,
but regardless of the reason for wanting to end a marriage between
parties, the law states that the sole grounds for divorce in
Nigeria is that the “marriage has broken down
irretrievably”.
The Matrimonial Causes Act 1970 (the Act) and
the Matrimonial Causes Rules 1983 are the primary
laws that govern matrimonial causes such as divorce, annulment,
legal separation, etc of marriage in Nigeria. The Act provides that
the court with jurisdiction to hear and determine matrimonial
causes is the High Court of any State of the Federation.
It is trite to state that for a marriage to undergo divorce
proceedings in court for whatever reason, such marriage must be a
statutory marriage legally conducted and evidenced by a valid
Marriage Certificate. A statutory marriage is one celebrated under
the Act and it confers jurisdiction on the State High Court to
determine the petition for dissolution of marriage.
However, the law stipulates that a marriage under two (2) years
cannot be dissolved; this is called the two-year rule. This is
provided for under Section 30 of the Act 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 the leave of
court”. Such marriage can only be dissolved on the
reason where the petitioner instituting the divorce petition by
leave (permission) of the Judge and can prove that exceptional
hardship or that the case is one that involves exceptional
depravity which will be caused if the marriage is not dissolved, as
provided in Section 30 (3) of the Act. A lawyer
engaged for the divorce proceedings would be the one to obtain this
leave for the petitioner by filing the necessary application in
court.
In divorce proceedings, the party filing the case is called or
designated as the Petitioner while the other spouse sued is the
Respondent.
Ground for Dissolution of Marriage
The sole ground for instituting an action for divorce in Nigeria
is that the marriage has broken down irretrievably. This means that
the reason for wanting to dissolve the marriage is so critical that
the marriage can no longer be repaired.
However, the Act under Section 15 (2) (a-h) and
Section 16 states the particulars of fact that
must be proved by the Petitioner upon which the grounds for
dissolution of marriage can arise, These eight paragraphs are main
reasons for the divorce, and a party seeking to divorce in Nigeria
only require to establish just one of them in court. These eight
facts are as follows;
a) That the respondent has willingly and persistently refused to
consummate the marriage. The petitioner must prove that the
respondent has failed to have sexual intercourse. But where it is
proved that sex occurred even once, the marriage will be deemed
consummated and therefore the petitioner cannot rely on this reason
as a ground for divorce.
b) That since the marriage the Respondent has committed adultery
and the Petitioner finds it intolerable to live with the
Respondent. This particular reason is often the most difficult one
to prove out of all the eight reasons because two important
factors. First proving adultery can only be done by involving
another third party, the person the Respondent committed adultery
with. Second, adultery or sexual intercourse are often done in
private, so it may be difficult to prove in real sense. In
practice, it is the petitioner often relies on another reason or
fact if such is available due to difficulties often encounter in
proving adultery.
c) That since the marriage the Respondent has behaved in such a
way that the Petitioner cannot reasonably be expected to live with
the respondent. The facts that can be relied on by proving any of
this fact are provided under Section 16 of the
Act, although not exhausted. A large percentage of divorce
proceedings filed in Nigeria are based on this fact, because it
provides room for many situations that may be considered cruelty or
intolerable for any reasonable spouse to endure.
d) 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
or without the consent of the Petitioner. This reason will fail if
the petitioner actually approved of the desertion.
e) That the parties to the marriage have lived apart for a
continuous period of at least two years immediately preceding the
presentation of the petition and the Respondent does not object to
the decree of dissolution being granted. Where the Respondent
objects, this petition may collapse.
f) That the parties to the marriage has lived apart for a
continuous period of at least three years immediately preceding the
presentation of the petition. This is known as no-fault basis in
divorce proceedings. Where a divorce petition has been filed based
on this reason, the presiding judge has no other discretion than to
dissolve the marriage.
g) That the other party to the marriage has for a period not
less than one year failed to comply with a decree of restitution of
conjugal right made under the Marriage Causes Act. Filing a divorce
based on this reason is not often common in Nigeria.
h) 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. For someone
to be presumed dead under the law, such a person must have been
missing for up to seven years in accordance with the provision of
the law. This fact is another reason not often common in Nigerian
divorce proceedings.
To successfully institute an action for divorce and for a
judgment to be granted in favour of the Petitioner, he/she must
successfully satisfy the court of any one or more of the facts
stated above before the court can make a decree for the dissolution
of marriage.
When the any of the reasons above have been successfully proved
by the Petitioner, the court can make an order for a decree
nisi, which is often contained in the judgement of the court.
The order often automatically become absolute within a period of
three months in the absence of any appeal from the affected party.
The three months window gives the other party an opportunity to
appeal the decision of the court. The decree nisi shall
become absolute three months after its grant as provided under the
Section 58 of the Act. When the decree nisi has become
absolute after three months, there is no right to appeal the
decision of the court again. Where any of the parties died before
three months after the grant of the decree nisi, it shall
not become absolute. In the case of Nkiru Amobi v.
Grace O. Nzegwu, the Supreme Court held that despite
the grant of decree nisi, the Petitioner and Respondent
are still considered married until the decree has become absolute
in accordance with the Act.
The marriage is completely dissolved where the Order of Decree
Absolute is made by the Court. The effect of dissolving a statutory
marriage is that a party to the marriage can marry again as if the
marriage had been resolved by death.
Conclusion
Matrimonial cases in Nigeria are very sensitive to determine by
the Court and it is not easy for a marriage union to be declared
broken. For a statutory marriage to be dissolved, the Petitioner
must successfully prove with good reasons one or more of the facts
stated above to justify that the marriage has broken down
irretrievably.
The court hearing a deciding a divorce case in Nigeria also has
power to grant orders as to the maintenance of any of the parties
or children of the marriage. The court can also make orders for
distribution of any joint assets.
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.
Source: www.mondaq.com
