WHEN IS DIVORCE FINAL IN NIGERIA?

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There are different types of marriages in Nigeria and these are classified into Marriage under the Marriage Act (Chapter M6, Laws of the Federation 2004) –this is referred to popularly as “Court Marriage”, “Civil Wedding”, “White Wedding”, etc, and then we also have marriage under native law and custom (which is broadly expanded to include Islamic Law Marriages).

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The nature of marriage contracted by a couple will determine the rules that govern how such a marriage will be dissolved (how divorce will happen).

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We shall focus our discussion in this writing on Marriage under the Act which is quite similar to Marriages under the Marriage Acts of nations in the United Kingdom, Australia, New Zealand and other countries where the common law is practiced. These classes of marriages and proceedings under them are governed by the Matrimonial Causes Act (2004).

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Marriage under the Act is held in very high regard in Nigeria and considered very sacrosanct, and so, all manner of safeguards are put in place in the Marriage Legislations to encourage the continuance of marriage by the spouses even when things start to go sour. For example, there is a prohibition on seeking a divorce from a marriage that is less than two years old, unless with leave (permission) of a court! That means once you marry under the ‘Court Marriage’ type, you must remain there for at least two years before you even try to divorce! Even then, the circumstances under which such permission will be granted by the court are highly restricted.[1]

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In Nigeria, there is only one ground upon which a marriage may be dissolved, and that is that the marriage has broken down irretrievably.[2] ?Even the necessary events where a marriage could be said to have broken down ‘patapata’ upon which a court may be invited to find that a marriage has broken down irretrievably have been outlined.[3]

Divorces are therefore not granted as a matter of course or by signing divorce papers’ as we see in the movies. Divorce Orders are only granted when you establish that the facts required to satisfy the court that a decree of dissolution is justified have in fact been supplied and proven.

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Marriage is considered so serious in Nigeria that even when you have phone through the stress of proving that the marriage has collapsed beyond repair, you still can’t go on Instagram or throw a party to celebrate your freedom from the terrible marriage just yet. There is still a further restriction on celebrating your change of status pending the occurrence of certain events. That is exactly the koko of our discussion here today.

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In Nigeria, when a person succeeds in in acquiring a dissolution of the marriage between that person and the spouse, the order granted by the court is called a decree nisi.[4]

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A Decree nisi is a form of interim divorce. A divorce ‘for now’, so to speak! and such interim divorce does not become complete or ‘absolute’ (final) unless any of the following has occurred:

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i.????????????????????Only after three months (90 days) have passed;[5]

ii.??????????????????When the court is satisfied that provision has been made for children under 16 (or in special circumstances, provision has been made for the education, advancement and welfare of children over 16).[6]

iii.?????????????????When any appeal against the order of dissolution has been dispensed with or withdrawn[7].

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In any of the above cases, unless and until the Order nisi has satisfied the relevant condition for becoming absolute as stated in the judgment or the order nisi, the status of the parties does not change and they remain husband and wife.[8]

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In fact, a most profound judgment that resonates this issue is found in the very important decision of the Highest Court in Nigeria, the Supreme Court in the case of Nkiru Amobi V. Mrs?Grace Nzegwu?(2014) 2 NWLR (Pt. 1392) 510 at 541.

In this case, the man married under igbo customary law while his divorce to the wife he married under the ‘Court Marriage’ was still going on. ?After his divorce, and before the 90 days waiting period was up, the man went ahead to marry his new sweetheart at the Marriage Registry. Unfortunately for both of them, this man died shortly thereafter and that is when the wahala started for the ‘new wife’. The Court said that the new wife who was married before the 90 days period has expired was not properly married because the marriage between the husband and wife is not yet legally over. See wahala!

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While this position appears quite odd, a number of legal reasons exist that seem to justify it, apart from the moral pontifications of sanctity of marriage.

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First, according to Nigerian law, there is a right of appeal against a decree of dissolution nisi, and where the order is appealed, the order nisi will not become absolute until 28 days after the Appeal has either been dispensed with or withdrawn.?Please see the case of Adeyinka vs Adeyinka[9].

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Again, the order may become rescinded by the court on the application of any of the spouses (whether the successful party or the losing party) on the grounds that the parties have become reconciled.[10] Such an Application may even be brought ex parte (without notice) in some cases!

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In conclusion, parties in respect of whom an order of dissolution is made nisi retain their marital status up and until when such an order nisi becomes absolute.

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As a matter of fact, it would amount to fraud and contempt of court to declare one’s self single/divorced or to fill any forms or make any oaths or lead any person to believe that such a person’s marital status has changed before the Order becomes absolute.

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One of the cardinal cornerstones of the Nigerian Legal System is respect for, and adherence to the prescription of statute (laws). It is the law that a person retains his/her marital status even when a decree nisi is made dissolving the marriage up until the time named for same to become absolute. Please see again, Section 67 MCA LFN 2004.

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When any law prescribes a way of doing a thing, it is that way or manner prescribed and no other by which that thing may be done.[11] Also where words in a statute are clear and unambiguous, as in the case of the relevant statutes cited, then their simple, natural and ordinary meaning must be given.[12]

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The Bottom line is that the fact that you have gotten a divorce does not necessarily immediately end your marriage. So:

1.?????If marrying a person that is divorcing, don’t plan your marriage to him or her to happen less than 90 days after the decree of dissolution (divorce order) has been made by the court;

2.?????Obtain a copy of the divorce order and carefully study the terms and conditions upon which the divorce was granted;

3.?????Carefully investigate to see if there is any appeal by the divorced wife or spouse;

4.?????Don’t make too much noise or brag or diss the divorced spouse merely because you’re marrying their ex. The ex can ruin your marriage for you

5.?????Always seek the advice of a lawyer who understands divorce cases.

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I hope you found this material helpful. Please tag someone this might help or who might enjoy reading this.

[1] Section 20 (1) of the Matrimonial Causes Act, Chapter M7, Laws of the Federation 2004 (hereafter. MCA, Cap. M7LFN 2004)

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[2] Section 15 (1). MCA, Cap. M7LFN 2004

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[3] Section 15 (2) MCA Cap. M7LFN 2004

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[4] Please see Section 56(1)b, MCA LFN 2004

[5] ibid

[6] Please see Sections 57, 57(1), MCA LFN 2004

[7] Please see Section 57(3), MCA LFN 2004

[8] Please see Section 67, MCA LFN 2004

[9] (1971) 1NMLR 235. This case underscores the fact that until an Order becomes absolute, it is not yet Uhuru, as a number of issues can come up and the status of the parties remains as man and wife until that happens

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[10] Section 60 MCA, LFN 2004

[11] AMAECHI VS INEC (2007) 5 NWLR (PT. 1080) 227 AND CCB NIGERIA PLC VS AG ANAMBRA (1992) 8 NWLR (PT. 261) 528; ISAAC OGUALAJI VS A.-G., RIVERS STATE & OTHERS (1997) 6 NWLR (PT. 508) 209

[12] OKOTIE EBOH VS MANAGER & ORS (2004) 12 SCNJ 139; BABATUNDE VS PAN ATLANTIC SHIPPING & TRANS AGENCIES LTD & ORS (2007) 4 SCNJ 140