GROUND FOR DIVORCE IN NIGERIA – BRIEF OVERVIEW

Dissolution of marriage is the process whereby an end is put to a legal union between a man and a woman by a court of law. The Matrimonial Causes Act primarily governs this process in Nigeria. The Act outlines the legal framework and provides the ground for divorce in Nigeria upon which a marriage can be dissolved. Before a marriage is legally dissolved, the ground and the facts or reasons in support of the ground must be proven to the satisfaction of a court of competent jurisdiction.

This article explores the ground and facts for the dissolution of marriage in Nigeria, the legal process and the implications as provided under the Matrimonial Causes Act.

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Ground for Dissolution of Marriage under the Matrimonial Causes Act

The only ground for dissolution of marriage, as provided by section 15 of the Matrimonial Causes Act, is that the marriage has broken down irretrievably. However, to prove this ground, some of the facts that must be proven before a court of competent jurisdiction are:

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a.?????? That the Respondent has willfully and persistently refused to consummate the marriage: Before it can be concluded that a respondent has willfully and persistently, it must be proved that no consummation has taken place between both parties, the refusal was conscious and deliberate on the part of the Respondent, and it is important to prove to the court that the refusal has been after the marriage under the Act.

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b.????? Since the marriage, the Respondent has committed adultery and the Petitioner finds it intolerable to continue to live with the person: The Act provides that this fact is a valid ground for divorce if the Petitioner finds it intolerable to live with the Respondent due to their infidelity. This must be proven before the court, and the intolerability is well demonstrated.

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c.?????? The Respondent has behaved during the marriage in a way that the Petitioner cannot reasonably be expected to live with him. Examples of these behaviors are listed in section16 (1) of the Act, including;

·???????? Since the marriage, the Respondent has committed rape, sodomy, and bestiality, or

·???????? Since the marriage, the Respondent has, for a period of not less than two years, been a habitual drunkard or habitually intoxicated by reason of taking or using to excess any sedative, narcotics, etc., and

·???????? Since the marriage, the Respondent has, within a period not exceeding five years, suffered from frequent convictions for crimes and has habitually left the Petitioner without reasonable means of support.

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d.????? That the Respondent has deserted the Petitioner for the continuous period of at least one year immediately preceding the presentation of the petition: There are four elements that must be present to prove this,

·???????? The de facto separation of the parties

·???????? There is the intention to withdraw from cohabitation permanently

·???????? There is no just cause for the withdrawal of cohabitation

·???????? And the deserted spouse did not consent to it

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e.?????? That the parties to the marriage have lived apart for the continuous period of at least two years immediately preceding the presentation of the petition, and the Respondent does not object to the decree being granted: Intention of either of the parties not to return to the other and non-objection on the part of the other must be proven before the court. Where one party objects to the dissolution, this reason will fail.

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f.??????? 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: This fact or reason is the easiest or most straightforward one for a divorce. Because the parties need not adduce any additional reason or explanation for living apart to prove this ground, the Petitioner simply needs to prove he/she has lived apart from the Respondent for a period of three years.

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g.?????? That the other party to the marriage has, for a period less than one year, failed to comply with the decree or order of restitution of conjugal right made under the Act: This fact is that the Respondent had refused to resume cohabitation with the petition in compliance with the order given by court before the divorce petition was filed.

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h.????? That the other party to the marriage has been absent from the Petitioner for such a time and in such circumstances as to provide reasonable ground for presuming that the Respondent is dead: The Evidence Act 2011 stipulates that someone can be presumed to be dead if he/she has been missing and cannot be found for at least seven years. So where a party to a marriage is missing for at least seven years, the spouse can file for a divorce based on this ground.

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Procedures for Dissolution of Marriage

To dissolve a marriage in Nigeria, the Petitioner must follow a legal process, which includes:

1.??????? Filling a Petition: A petitioner gets his Lawyer to file a petition for the dissolution of marriage at a State High Court where either of the Parties resides in Nigeria, upon the ground that the marriage has broken down irretrievable, complemented by its verifying affidavit

2.??????? Service of Petition: the petition is served on the Respondent, who may choose to answer or file his cross-petition, if any. The petition is accompanied by a notice of petition and any relevant evidence the Petitioner seeks to rely on.

3.??????? Compulsory conference: this is required to be held where the contentious suit includes issues relating to the maintenance of a party to the proceedings, settlement of property jointly owned and custody of the children of the marriage.

4.??????? Court Hearing: The party that filed the petition will give evidence of all the facts he has alleged. If the Petitioner proves any or all the above grounds, the court will make a decree nisi to dissolve the marriage, which becomes absolute after three months of the order, provided no appeal was filed by any of the affected parties. When a decree for dissolution becomes absolute, a party to the marriage may remarry because the marriage has been completely dissolved.

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The Two-Year Rule

A petition for dissolution of marriage shall not be instituted within two years after the date of the marriage except by the leave of court.

This rule is stated in the case of Fisher v. Fisher. The reason for this rule is to prevent people from rushing out of marriage as soon as they encounter any little challenge or realize that the marriage is not as rosy as they expected. This is also entrenched in the provision of Section 30(2) of the Matrimonial Causes Act that the court shall not grant the leave to institute the proceedings except on the ground that the refusal would impose exceptional hardship on the applicant or that the case is involving exceptional depravity on the part of the other party to the marriage.

In conclusion, the dissolution of marriage in Nigeria is a structured legal process governed by the Matrimonial Causes Act, Matrimonial Causes Rules and other judicial decisions. All the facts brought before the court must be proven to the satisfaction of the court, and their implications can be far-reaching, affecting child custody, property division and spousal support.

Marriage is a contract under the law, which can be dissolved, and each party is relieved of any conjugal responsibility to the other. It is advisable to get a divorce lawyer when the union between two parties becomes sour, and any of the parties find it unbearable living with each other, especially when the existence of domestic violence is involved.

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By Family Law Team at Resolution Law Firm

Email: [email protected]

Tel: +2348099223322