DISSOLUTION OF STATUTORY MARRIAGE

Marriage is a very beautiful thing; however, many marriages are falling apart and many feel trapped and long to have the marriage dissolved. The institution of marriage is sacred and our Matrimony causes law does not encourage divorce, hence a mere complaint by either of the party that she/he is no longer in love is not sufficient ground upon which the court can grant divorce. A valid statutory marriage can only be dissolved by death or by Court pronouncement. This article will look at when a divorce petition may be filed, ground for divorce and what needs to be pleaded and proved to have a valid statutory marriage dissolved in Nigeria.

 Divorce Petition is the court process filed in Court, asking the Court to dissolve the marriage. In this article the word petitioner means the person who wants a divorce while the Respondent is the other partner. Dissolution of marriage and divorce may also be used interchangeably.

 1.    Law governing dissolution of marriage:

 The dissolution of marriage contracted pursuant to Nigerian Marriage Law, is guided primarily by the Matrimonial Causes Act, Cap. M7, Laws of the Federation of Nigeria, 2004. 

2.    Can Divorce be filed within two years after the date of the marriage:

Petition to dissolve marriage under two years cannot be filed without the leave of court and the court will not grant such leave except on the ground that refusal would impose exceptional hardship on the applicant or that the case is one involving exceptional depravity on the part of the other party to the marriage.(see Section 30(3) MCA). In granting leave the court will consider the interest of any children of the marriage and the possibility of reconciliation between the parties before the expiration of two years after the date of the marriage.  

The leave of court may be granted if the petition is based on any of the following facts:

i.              Wilful and persistent refusal to consummate the marriage,

ii.            adultery,

iii.           rape, sodomy or bestiality

(see 15(2)(a) – (b) and 16(1)(a) of the MCA)

To obtain the said leave of court the applicant must show that a refusal of leave would impose exceptional hardship on him/her or that the case is one involving exceptional depravity on the part of respondent. In Akere v. Akere [1962] WNLR 328  the wife alleged that her husband committed adultery with 3 women and he made inordinate sexual demands when she was sick after returning from hospital; physical violence; constant neglect and quarrelling; and transmitted venereal disease to her. These allegations were held to be exceptional hardship and exceptional depravity. It has also been held that burning of the certificates of the applicant, his engineering books, clothes, failure to perform the duties of a wife and refusing the husband sex amount to exceptional hardship.

The Applicant need to show that the hardship to be suffered or the respondent’s depravity is something out of the ordinary, hence the Court has the discretion to determine whether the act complained of really constitute exceptional hardship or not.

The law is designed to discourage people from rushing in and out of marriages as marriage is sacred and should be treated as such.

3.    Ground for dissolution of marriage:

By virtue of section 15(1) of the Matrimonial Causes Act, a petition under the Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably.  This is the only ground upon which marriage can be dissolved.

4.    What petitioner must plead and prove:

For the Court to hold that the marriage has broken down irretrievably, the petitioner must plead and prove that the marriage has broken down irretrievably and be able to bring himself within one or more of the facts enumerated in section 15(2)(a - h) of the Matrimonial Causes Act, namely:

i.              that the respondent has willfully and persistently refused to consummate the marriage;

ii.            that since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

iii.          that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

iv.           that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

v.            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 respondent does not object to a decree being granted;

vi.           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;

vii.         that the other party to the marriage has for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made under the law.

viii.       that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming, that he or she is dead.

 In addition to facts under section 15(2) of the Matrimonial Causes Act, section 16(1) stipulates circumstances or facts, out of which if proved would constitute the fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. These facts are the:

i.              commission of rape,

ii.            commission of sodomy,

iii.          commission of bestiality,

iv.           being an habitual drunk,

v.            being drug addict for two years,

vi.           frequent convictions for crime coupled with habitually leaving the petitioner without reasonable means of support,

vii.         attempting to murder the petitioner or inflicting grievous bodily harm or

viii.       refusal to comply with a maintenance order,  and

ix.           confinement in a mental institution for five years during the six years period immediately preceding the presentation of the petition.

 The facts of adultery, desertion, and intolerable behavior when relied on, usually make the divorce process messy, as same are based on fault findings. However, where parties relies on fact of living apart, the marriage will be deemed to have broken down irretrievably without passing blame on each other. The distinction between the two types of living apart is that, to rely on living apart for two years, both parties must not be opposed to the dissolution of the marriage while for living apart for three years, it does not matter whether one of the parties still desires to keep the marriage or not.

 5.    Standard of proof in matrimonial Causes:

The matrimonial offence must be strictly proved. The standard of proof is not on a balance of probability or preponderance of evidence as in general civil cases. The standard of prove is on the petitioner but taken as discharged once it is established to the reasonable satisfaction of the court. Once the court is reasonably satisfied of the existence of a ground to grant the divorce, the court will then proceed to hold that the marriage has broken down irretrievably.

6.    Conclusion:

 The law requires that every petition for dissolution of marriage must contain specific ground or grounds that will fall within the set out facts under sections15(2) and 16(1) of the Matrimonial Causes Act and the court will pronounce a decree of dissolution of marriage if satisfied on the evidence that a case for the petition has been made.