Introduction
Frustration and dejection are the feelings that best describe the marital woes faced by Florence. 'Divorce is the only way out of this', she lamented. Yet, her greatest fear is her lack of understanding of the grounds for dissolution of statutory marriages in Nigeria. Sailing through the divorce process without this knowledge is daunting. If you contracted a statutory marriage like Florence, this article will guide you through the grounds for divorce in statutory marriages in Nigeria. We will explore the facts you need to establish irretrievable breakdown of marriage under Section 15 of the Matrimonial Causes Act. Understanding the grounds for divorce is very important, because it will significantly increase your chances of successfully navigating the divorce process.
What is Statutory Marriage in Nigeria?
Statutory marriage is also known as marriage under the Act. It is often loosely referred to as 'court marriage'. Statutory marriages are marriages regulated by the provisions of the Marriage Act of Nigeria. Unlike customary or Islamic marriages, statutory marriages follow specific legal guidelines as laid down in the marriage Act.
This type of marriage is often conducted at marriage registries or licensed places of worship. it provides spouses with certain legal protections and obligations that do not apply to other forms of marriage. So, if you are considering divorce from a statutory marriage, it is very crucial to understand the single ground for divorce recognized by the law.
The Single Ground for Divorce in Statutory Marriage
In Nigeria, statutory marriage will not be dissolved merely because the parties have agreed or want the marriage to be dissolved. Marriage is a very important institution. It is the foundation of a stable society. The policy of the law therefore is to preserve the institution of marriage. That is why marriages will not be dissolved on agreement of parties to it. A decree for the dissolution of a statutory marriage would therefore only the granted if the petitioner( the spouse that filed for divorce) has proved the sole ground for divorce, which is – that the marriage had broken down irretrievably as provided in Section 15(1) the Matrimonial Causes Act.
Conversely, the inability of the petitioner to prove that the marriage has broken down irretrievably will make the petition for divorce to be unsuccessful.
Proving Grounds for Divorce: Essential Facts to Consider Under Section 15(2) of the Matrimonial Causes Act
According to Section 15(2) of the Matrimonial Causes Act, the court will hold that a marriage has broken down irretrievably if the party who filed for divorce successfully establishes any of the following facts to the satisfaction of the court, namely:
1. Willfully and Persistently Refused to Consummate the Marriage
If one spouse consistently and deliberately refuses to engage in sexual intercourse to consummate the marriage, the other spouse can cite this as grounds for divorce.
2. Adultery and Intolerability
Adultery is one of the most common reasons or facts that could give rise to divorce if proved to the satisfaction of the court. If one spouse engages in adultery and the other finds it intolerable , the court may accept this as evidence of irretrievable breakdown of the marriage.
If you are wondering how adultery affects your case, my detailed guide on adultery and divorce: legal strategies for proving and winning cases will walk you through the next step.
3. Conducts Not Reasonably expected to Bear
The spouse who alleged that the marriage has broken down irretrievably because of intolerable behaviour of the other spouse has a duty to prove two sets of facts namely:
i. The sickening and detestable behaviour of the Respondent( 'the respondent' is the person who receives the divorce petition filed by their spouse, who is referred to as 'the petitioner') and
ii. That the Petitioner finds it intolerable to live with the Respondent1.
The test applied by courts in determining unbearable conducts is an objective test. Hence, the conduct of your spouse which you will not be reasonably expected to put up with must be grave and weighty in nature as to make further cohabitation virtually impossible. However, before the Court will come to that conclusion, the entire history of the marriage has to be considered. The burden of proving the unbearable conduct lies on the spouse that filed for divorce. To be successful, these facts must be proved to the reasonable satisfaction of the court.2
Furthermore, the conduct that would amount to intolerable behaviour is not at large. It is specifically provided in Section 16(1)(a) – (g) of the Matrimonial Causes Act namely:
1. Serious misconduct: Since the marriage, the respondent has committed rape, sodomy, or bestiality.
2. Addiction: The respondent has, for at least two years since the marriage: Been a habitual drunkard, or Frequently been intoxicated by excessive use of drugs or sedatives.
3. Criminal behavior and neglect: Within the last five years, the respondent: Has been convicted of multiple crimes, leading to a total prison sentence of at least three years, and Has habitually left the petitioner without enough financial support.
4. Imprisonment: The respondent has been imprisoned for at least three years after being convicted of a crime punishable by death or life imprisonment, and is still in prison at the time of the divorce petition.
5. Violence or serious harm: Within one year before the divorce petition, the respondent has been convicted of: Attempting to murder or unlawfully kill the petitioner, or Intentionally causing grievous bodily harm to the petitioner.
6. Failure to provide maintenance: The respondent has failed to pay maintenance for the petitioner over the two years before the divorce petition, as ordered by a court or agreed in a separation agreement.
7. Mental illness: The respondent: Is of unsound mind at the time of the divorce petition and is unlikely to recover, and Has been confined in a mental institution for at least five years within the last six years.
so, any petition for divorce which relies on unbearable conduct which is outside the ones listed above stands the risk of being dismissed by the court.
For instance, in the case of Nanna v. Nanna3 the petitioner relied on the fact that the respondent has behaved in such a manner that he is not reasonably expected to bear. However, the court found that the sickening conduct he found unbearable is not one of the conducts stipulated in section 16(1) , hence his petition was dismissed.
4.Desertion for a Continuous Period of One Year:
Desertion is a ground for dissolution of marriage under Section 15(2)(d) of the Matrimonial Causes Act. Desertion is the withdrawal of support and cessation from cohabitation without the consent of the other spouse and with the intention of abandoning allegiance, fidelity or responsibility and to remain separated forever4.
Physical separation of the spouse does not necessarily mean living apart from each other or that they are in desertion. To constitute desertion, the Petitioner must plead and lead credible evidence to prove the following facts:
(a) Defects or physical separation;
(b) The manifest intention to remain permanently separated;
(c) Lack of just cause for withdrawal from cohabitation; and
(d) Absence of consent of the deserted spouse.
The implication of the above is that the court will dismiss any petition for dissolution of a statutory marriage based on desertion for a continuous period of one year if it is shown that the petitioner consented to the desertion or that the conduct of the petitioner is what brought about the desertion.
The above principle of law was clearly illustrated in the case of IGBUWE V. IGBUWE5 wherein the wife deserted the marriage for almost two years and this made the husband to file a petition for the dissolution of their marriage on the fact that the wife had continuously deserted the marriage for a year. The court dismissed his petition because it was shown that the conduct of the husband and her three sisters was what forced the wife out of her matrimonial home. The husband was held to be in constructive desertion.
Types of desertion
There are two types of desertion namely;
1.simple desertion: Simple desertion occurs where the deserting party abandons the matrimonial home
2. constructive desertion: in constructive desertion, the spouse remains in the home but has abdicated all matrimonial responsibility and has thus, by his conduct expelled the other spouse.6 In that respect, desertions remain a matter of fact and law to be determined by the Court hearing the matter
5. Living apart for two years
Living apart from your spouse for a continuous period of two years immediately preceding the presentation of the petition for divorce is not by itself conclusive proof upon which divorce could be granted. The living apart must be one where any of the spouse abandons and forsakes without any justification, thus renouncing its responsibilities and evading its duties. For instance, in Nanna Vs Nanna7, the petitioner relied on living apart for two years as a fact to prove irretrievable breakdown of their marriage, but his case collapsed because his threats and assault was what led the wife to live apart for more than two years. His petition was dismissed.
Furthermore, to be successful, you must establish that the living apart for two years was continuous and your spouse does not object to the dissolution of marriage. This implies that the petition for divorce will not be successful where it is shown that the living apart for two years was not continuous and where the respondent objected to the dissolution of marriage. The above principle of law was illustrated in the case of Bakare v. Bakare 8 where the court held that the petition for divorce was not proved because the period of living apart was not proved to be a continuous one.
6.Living Apart for Three Years
For the purposes of Section 15(2)(e) and (f) of the Matrimonial Causes Act, the couple is considered to be living apart unless they are physically living together in the same house9. This means that even if they are distant in other ways, they are not legally seen as living apart if they still share a home.
7. Failure to Comply with a Decree for Restoration of Conjugal Right
If one spouse has been ordered by a court to resume marital relations (restore conjugal rights) and has failed to comply with that order, the other spouse may use this as grounds for divorce.
8. Absent from the Petitioner for so long a time to justify being presumed dead.
If your spouse has been missing and not heard from for seven years, you can apply for divorce based on presumed death
Difference Between the Grounds for Divorce in Statutory Marriages and Customary law Marriages
While statutory marriages have specific, legally defined grounds for divorce, customary marriages in Nigeria often follow different rules:
1. Grounds: Customary divorce grounds vary by ethnic group but often include adultery, cruelty, impotence, or failure to fulfill marital obligations.
2. Flexibility: Customary grounds can be more flexible and culturally specific compared to the rigid statutory grounds.
3. Court Involvement: Unlike statutory divorces which must be filed at the High Court of a state or at the High Court of the Federal Capital Territory, Abuja, customary divorces may be settled outside the formal court system by mere refund of bride price without alleging any grounds for divorce10, or by filing a petition for divorce at the Customary Court.
Beyond the Grounds for Divorce
While establishing the grounds for divorce is crucial, it is equally important to consider other factors that can impact the outcome of your divorce petition. Even if you prove your case, certain elements can still derail the process. Here are two critical considerations to keep in mind:
1. When to File Your Petition: Timing can play a significant role in the divorce process. Understanding when to file your petition is essential, as it can affect the court's perception of your case. For instance, if you've recently reconciled or attempted to resolve issues, the court may question your commitment to the divorce. Additionally, knowing the right time to file can ensure you meet necessary deadlines and avoid complications. For a more detailed exploration of this topic, check out my article: When to File for Divorce in Nigeria: a Comprehensive guide
2. Barriers to Divorce: Even after establishing the grounds for divorce, various barriers may impede your progress. These barriers can include procedural mistakes, lack of evidence, or even the emotional readiness of either spouse. For example, if you've forgiven your spouse's actions and continued to live together, the court may view this as a sign of reconciliation, potentially dismissing your petition. Understanding these barriers can help you navigate the divorce process more effectively. For an in-depth look at these challenges, read my article: Barriers to Divorce in Nigeria.
Conclusion
Navigating the grounds for divorce in statutory marriages in Nigeria can be complex, but understanding these grounds is very crucial for anyone considering ending their marriage. From willful refusal to consummate the marriage to living apart for extended periods, the law provides various avenues to prove the irretrievable breakdown of a marriage.
However, it is essential to remember that divorce is a serious legal process with far-reaching consequences. Before proceeding, it is highly advisable to seek professional legal counsel to understand your rights, obligations, and the best course of action for your specific situation.
If you are considering divorce or are in the process of one, do not go through this challenging journey alone. Reach out to a qualified family law attorney who can guide you through the intricacies of Nigerian divorce law, protect your rights, and help you achieve the best possible outcome.
Footnotes
1 DAMULAK VS. DAMULAK (2004) 8 NWLR (PT. 874) 151; BIBILARI VS. BIBILARI (2011) LPELR 4443 (CA) and BAKAU VS. BAKAU (2013) LPELR – 22687 (CA)
2 Section 82 (1) and (2) of the Matrimonial Causes Act
3 Nanna v. Nanna (2006) 3 NWLR (Pt. 966)
4 NWANKWO VS. NWANKWO (2014) LPELR – 24396, , ogunjobi v. ogunjobi (2021) LPELR-52894(CA) (Pp. 33-34 paras. B)
5 (2023) LPELR-60748(CA)
6 Section 18 of the Matrimonial Causes Act
7 Supra
8 (2016) LPELR-41344(CA) (Pp. 15 paras. A)
9 Section 15(3) of the Matrimonial Causes Act
10 Nwanngwu v. Ubani (1997) 10 Nwlr (Pt. 526) 559
9 October 2024
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.