Divorce is a legal process for severance of marital ties and the dissolution of marital union. In Nigeria, the process for divorce involves some specific procedures that must be followed depending on the type of marriage conducted. This write-up aims to outline the legal processes, grounds for divorce, and other important considerations for those who intend to go through a divorce process in Nigeria.
Types of Marriage and Courts' Jurisdiction
In Nigeria, there are primarily two types of marriage i.e. Statutory Marriage and Customary Marriage. It is important to identify the type of marriage conducted while undertaking the divorce process as this determines the Court with the jurisdiction to hear the matter.
(a) Statutory marriage: This refers to marriages conducted under the Marriage Act. They are usually conducted at the Marriage Registry or a licensed place of worship such as churches. It is the State High Courts and High Court of Federal Capital Territory that have the jurisdiction to entertain cases relating to the dissolution of statutory marriages.
(b) Customary marriage: This refers to marriages conducted under custom and tradition. Islamic marriage is considered as customary marriage in Nigeria. Also, marriages conducted in unlicensed places of worship (churches) fall within this category. It is the Customary Courts that have the jurisdiction to hear matters with respect to this type of marriage.
This write-up shall focus on the procedure for the dissolution of statutory marriages.
Grounds for Divorce in Nigeria
By the Provision of the Matrimonial Causes Act, there is only one ground for the dissolution of marriage in Nigeria which is that the marriage has broken down irretrievably. In establishing this ground, one of more of the following must have occurred and must be proved in Court:
(a) the Respondent has willfully and persistently refused to consummate the marriage;
(b) the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
(c) the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
(d) the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
(e) 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 the Respondent does not object to a decree being granted;
(f) the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
(g) 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 this Act;
(h) 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.
The Divorce Process
The divorce process in Nigeria typically involves the following steps:
1. Filing of a Divorce Petition in Court:
The process for dissolution of marriage begins by filing a divorce petition in the appropriate court. The petition is expected to outline the grounds for divorce and the facts the Petitioner wishes to rely upon in establishing that the marriage has broken down irretrievably. The necessary documentation to file in court at this stage includes the following:
(a) Petition for decree of dissolution of marriage
(b) Notice of petition for decree of dissolution of marriage.
(c) Verifying affidavit.
(d) Certificate relating to reconciliation to be signed by the legal practitioner.
(e) Acknowledgement of service
(f) Notice of Address for Service.
(g) Copy of Marriage Certificate.
2. Service of the Court Processes
After filing the petition as stated above, the other party must be served with a copy of the divorce papers to ensure they are aware of the proceedings. The other party may then decide to respond to the Petition by filing an Answer. The party may also file a Cross-Petition.
3. Court Proceedings
In some cases, the court may require the parties to explore the possibility of reconciliation. However, if the effort towards reconciliation fails, the court will proceed to consider the case.
During the trial, both parties will present their cases with evidence and witnesses where necessary. Upon conclusion of the trial, the legal practitioners representing the parties will present legal arguments in support of the facts and evidence presented by the parties.
4. Judgment
After due consideration of all facts, evidence, and arguments before the Court, the Court will then deliver a judgment either granting or denying the divorce. If the divorce is granted, the Court at this stage grants a "Decree Nisi" which becomes absolute after 3 months.
Conclusion
Divorce in Nigeria is a multifaceted process influenced by different factors including the legal system, cultural norms, and religious beliefs. Also, the process requires strict adherence to specific rules and procedures. It is therefore advisable to seek the assistance of a lawyer to navigate the complexities of the process and ensure that rights and interests are well protected throughout.
By the Probate and Family Law Practice Department of Aekley Solicitors, Nigeria.
Originally Published 11 October 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
