The first thing to consider when contemplating filing for a divorce in Nigeria is the kind of marriage certificate you have. Your marriage certificate can be either customary or statutory; the divorce process being considered here only applies to a statutory marriage (also called marriage under the Act). Once you have concluded that your marriage was conducted under the Act, the next step is to reach out to a lawyer who can assist in evaluating your entire case.
The Matrimonial Causes Act states that a marriage must have “broken down irretrievably” before one can file for a divorce. To show an irretrievable breakdown, you must prove that your partner has committed one or more of the following:
- Willful and consistent refusal to consummate the marriage
- Adultery
- Intolerable behavior
- Desertion for at least one year immediately preceding the petition.
- Living apart for a minimum of 2 years where the respondent will not object to the dissolution.
- Living apart for 3 years
- The respondent has failed to comply with a decree or restitution of conjugal rights
- Absence of the respondent for a long time such that he is presumed to be dead.
You don’t have to worry about the right one for you, your lawyer can determine the most suitable one for you based on the circumstances and facts of your case. Also, you need to consider the custody of children of the marriage (if there are any), sharing of property and maintenance by the spouse if required.
The Step-by-Step Process
Step 1: Get a Lawyer
To institute a divorce proceeding, you need a Lawyer. Areas of expertise, competence, availability and experience are some of the things you need to consider before getting a lawyer. The Lawyer will play an important role in the case from advising, preparation of documents, filing, and representation.
Step 2: Preparation and filing of Divorce documents
The Lawyer will prepare your divorce papers known as a “Petition” attach other necessary documents and institute an action at the High Court of your preferred State. On the Petition whoever is filing the petition will be called the petitioner while the other spouse the petition is filed against is called the respondent.
Step 3: Serve the Respondent
Service means the delivery of divorce documents to the other party to notify such person of a pending case. A court officer called a Bailiff (or Sheriff) is responsible for the service. Where the basis for divorce is adultery, a third party can be joined as co-respondent (such person is the respondent committed adultery with). The respondent must be served with the Petition. Where there is a co-respondent, such a person must be served as well.
Step 4: Compulsory Conference
Once the court is satisfied that the other party has been served, the court will direct couples to embark on a compulsory conference. This conference allows both parties to agree on certain objects of dispute such as custody of children, maintenance and sharing of property. After the compulsory conference, the matter will be set down for hearing. Kindly note that compulsory conference is only required where there are children of the marriage, properties and disputes on spouse’s maintenance. Furthermore, the compulsory conference may not be necessary if the respondent fails to respond to the suit.
Step 5: Hearing of the Petition
This is the most important aspect of the divorce process. At this stage, the petitioner gives evidence and tender documents such as the marriage certificate. The respondent has the chance to conduct a cross-examination to weaken the petitioner’s case. After the case of the petitioner is closed, the respondent opens his case and gives evidence. He can be cross-examined and re-examined. It is pertinent to note that it is not in every situation that the respondent gives evidence, the respondent only gives evidence when he has filed a defence to the suit. The weight of evidence adduced by both parties at this stage will determine the court’s judgment. Also, the respondent may apply for a virtual hearing, in special circumstances that affect his physical presence in court, where this application has been granted, the hearing will be done virtually via teleconferencing platforms such as Zoom or Skype.
Step 5: Court Judgment
After the hearing, parties close their case and the Judge delivers judgment. This judgment does not terminate the marriage immediately, however, it is given in the form of “Decree Nisi” which is the statutory way of affirming that the marriage has broken down irretrievably. A contending party must appeal this Decree within 3 months. Failure to do this after 3 months, the Decree will become absolute which leads to the dissolution of the marriage completely. Once this occurs, both parties may re-marry after 90 days of the decree becoming absolute. Judgment will also be delivered on other ancillary reliefs such as child custody, and maintenance.
Can a Person Living Overseas File a Divorce in Nigeria Without Physical Presence?
For some practical reasons, a valid divorce cannot be filed in absentia. Generally, to file a divorce in any court in Nigeria, the petitioner must be domiciled in Nigeria. Generally, any person having Nigerian citizenship or who has the intention to reside permanently in Nigeria is domiciled in Nigeria. If the circumstances surrounding your case show that you are not domiciled in Nigeria, you cannot file for a divorce in Nigeria. However, living overseas will not affect your domicile as much as you have the intention to reside permanently in Nigeria.
In the final analysis, divorce in Nigeria takes a while from beginning to end. However, the key to this is to get a lawyer to analyze your case before commencing the process. Divorce is a litigation that can be won or lost; therefore, it is important to prove in court any of the statutory requirements on reasons or facts justifying that the marriage has broken down irretrievably as contained in the Section 15(2) of the Matrimonial Causes Act.
Written by Resolution Law Firm
Email: info@resolutionlawng.com
