THE LAW ON DIVORCE IN NIGERIA


Edited by: Asykobi

The issue of divorce like other issues of life is all about perspective. There are different perspectives to the grounds for dissolving a marriage such as the religious, cultural, jurisprudential, sociological, statutory, trendy, mystical and pragmatic perspectives. Take for instance in the Christian faith, adultery is the only recognised ground for divorce. The focus of this legal illumination is the statutory grounds for divorcing a spouse in Nigeria as provided in the Matrimonial Causes Act.

 Matrimonial Causes Act:

Prior to the year 1970, the statute regulating the grounds for divorce in Nigeria was the English Matrimonial Law known as the Marriage Ordinance or Old Marriage Act, which became applicable in Nigeria by virtue of Lagos becoming a colony of the British Crown in 1861. The Marriage Ordinance being an English Law was unable to take care of the Nigerian indigenous matrimonial needs. The necessity for an indigenous matrimonial statute paved the way for the enactment of Matrimonial Causes Act on the 17th March 1970.

In Nigeria, couples have the choice of having a customary marriage or a statutory marriage. A customary marriage is a marriage contracted under the native law and custom of an ethnic community. A statutory marriage is a marriage contracted under the Matrimonial Causes Act.

The legal implication of this choice is that, while a statutory marriage can only be dissolved by a court of competent jurisdiction on the statutory grounds provided in the Matrimonial Causes Act, a customary marriage can be dissolved arbitrarily. Traditionally however, a customary marriage may be dissolved either judicially by the appropriate customary court or nonjudicially by:

i) The wife leaving the husband and the bride price being refunded; or

ii) The husband driving away the wife; or

iii) By mutual consent of the couple.

 Grounds for Divorce

"the learned counsel contended that there is only one ground for the dissolution of marriage in our law. This with respect may not be totally correct, to say the least, as there are several grounds which the Matrimonial Causes Act refer to as "facts". (See; Sections 15(2) and 16(1), Matrimonial Causes Act. However, in Nigeria, a Court cannot dissolve a marriage or declare a marriage to have broken down unless one of the facts listed in Section 15(2) is established by the petitioner, even though it appears the marriage has broken down irretrievably. See; Service Omopariola Okojie vs. Michael Abodele Oko unreported Suit No. WD/21/7 Lagos High Court, delivered on 10th March 1976; Mohammed Damulak vs. Lesley Patricia Damulak (2004) 8 NWLR (pt 874) 151 at 166."
Per Ariwoola, J.C.A (P. 24, paras. C-G) LT. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006) LPELR-7670(CA)
By virtue of Section 15(1) of Matrimonial Causes Act, a court has the jurisdiction to make an order dissolving a statutory marriage only on the ground that, the marriage has broken down irretrievably.

However, the court in coming to the conclusion whether a marriage has broken irretrievably is required to take into consideration the occurrence of one of more of the situations set out in sub-section (a) to (h) of Section 15 (2) of the Act. If the spouse seeking the divorce can prove the occurrence of one or more of the situations, the court will have no choice than to grant the prayer for divorce, as this implies that, the marriage has broken down irretrievably in law.

The Situations that Suggest a Marriage has Broken Irretrievably:

An occurrence of any of the following eight situations in the eyes of the Matrimonial Causes Act is a conclusive proofs that a marriage has broken down irretrievably.

1. Where a spouse has willfully and persistently refused to have sexual intercourse with an aggrieved spouse. Section 15(2)(a).

2. Where a spouse has committed adultery and the offended spouse find it intolerable to live with the offending spouse. Section 15(2)(b)

3. Where a spouse has behaved in such a way that the aggrieved spouse cannot reasonably be expected to live with the offending spouse. Section 15(2)(c). Section 16(1) set out the behaviors that can be said to be the ones that a person cannot be reasonably expected to live with to include:

a) Commission of sexual offences such as: committed rape, sodomy, or bestiality.

b) Habitual drunkenness or drug addiction: for a period of not less than two years.

c) Frequent convictions and imprisonment for crime.

d) Habitually leaving a spouse without reasonable means of Support.

e) Attempt to murder and assault spouse

f) Habitual and willful failure to provide court ordered or agreed support for two years.

g) Insanity and unsoundness of mind

h) It should be noted that, where the offended spouse alleges that the offending spouse has behaved in such a way that the offended spouse cannot reasonably be expected to live with offending spouse but the couple have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the offended spouse and held by the court to support the allegation of offended spouse, that fact shall be disregarded in determining for the purposes of section 15(2)(c)whether the offended spouse cannot reasonably be expected to live with the offending spouse if the length of that period or of those periods together was six months or less. See Section 17 (1) of the Act.

4. Where a spouse has deserted the other spouse for a continuous period of at least one year.

a) In considering for the purposes of section 15(2) of the Act whether the period for which a spouse has deserted the other spouse or the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion or of the period for which the parties to the marriage lived apart, as the case may be.

b)The types of desertion:

i. Simple Desertion: the guilty spouse abandons the matrimonial home.

ii. Constructive Desertion: The spouse who is in desertion is the spouse who by his or her conduct expels the other spouse and remains at home.

The elements of desertion:

i. Physical separation or defacto separation: This implies bringing co-habitation to an end by severing marital obligations; or

ii. Intention to remain permanently separate or animus deserendi

iii. Absence of the spouse’s consent.

iv. Absence of any justification: There will be no desertion if the spouse who has withdrawn from cohabitation has a good reason for doing so.

5. Where the parties to a marriage have lived apart for a continuous period of at least two years and one of the parties does not object to the marriage being dissolved.

6. However, where the parties to a marriage have lived apart for a continuous period of at least three years the consent of the other party is not required. Section 15(2)(e) and (f).

a) References to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.

7. Where your spouse for a period of not less than one year, failed to comply with a court order of restitution of conjugal rights.

8. Where your spouse is missing for such a long time or seven year in such circumstances as to provide reasonable ground for presume he or she is dead or has no reason to believe that the spouse is alive

Divorce within Two Years of Marriage

1. Section 30(1) and (2) of the Matrimonial Causes Act provides that a suit for divorce cannot be filed within two years of marriage except if the other spouse is involved in:

a) willful and persistent refusal to consummate the marriage,

b) adultery,

c) commission of rape,

d) sodomy or bestiality,

2. Other than the above grounds the offended spouse will need the leave or permission of the court to file for divorce within two years of his or her marriage and the court usually will not grant leave to institute proceedings except on the ground that to refuse to grant the leave would impose exceptional hardship on the offended spouse or that the case is one involving exceptional depravity on the part of the offending spouse.

3. In determining an application for leave to institute proceedings under this section, the court shall have regard to the interest of any children of the marriage, and to the question whether there is any reasonable probability of reconciliation between the parties before the expiration of the period of two years after the date of the marriage.

Conclusion:

Lawyers are undertakers of dead marriages, not ruling out the fact that, some dead marriages do resurrect like the dead body of Lazarus or the prophetic dry bones putting on flesh and rising again. However, marital resurrection is a miracle that happens by choice and not by chance.

If you are in a dilemma on divorce think about the finding of a study at the University of Harvard, which observed that, all the members of family suffering from a high level of conflict, for example where there is persistent abuse or alcoholism, benefit from divorce. However, those marriages with low level of conflict gain more by staying together, and the harm to the children is less than that caused by divorce.

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