Introduction
Adultery and divorce in Nigeria has serious legal consequences in marital disputes. Adultery is not only a criminal offense under the Penal Code which is applicable to Northern Nigeria, but also a fact that if successfully proved could lead to dissolution of a statutory marriage. However, courts will only grant a divorce if the spouse finds the adultery intolerable and has not condoned the act. This article explores the legal implications of adultery in Nigerian divorce proceedings. It comprehensively explains how to prove irretrievable breakdown of marriage due to adultery under the Matrimonial Causes Act. It further discusses the conditions under which damages may be awarded in matrimonial proceedings predicated on adultery and the necessary legal procedures, including the joinder of the co-adulterer in the petition. Knowledge of these will help you to successfully navigate through any divorce proceedings predicated on adultery.
What is Adultery?
Adultery is consensual sexual intercourse between a married person and a person of the opposite sex other than the spouse. There must be some penetration of the woman by the man, although the act of sexual intercourse need not have been completed1. This means that sexual intimacy with someone of the same sex or rape does not qualify as adultery under this definition.
Adultery as a Fact that Could Give Rise to Divorce
In Nigeria, even if it is obvious that a statutory marriage is as good as dead, the court cannot dissolve such marriage. Before a statutory marriage could be dissolved the petitioner must prove that the marriage has broken down irretrievably. This is the sole ground for dissolution of statutory marriages. To discharge this burden of proof, the petitioner must proves one of the eight facts listed in Section 15(2) of the Matrimonial Causes Act. Adultery is one of these facts. Section 15(2)(b) states that the court shall hold the marriage to have broken down irretrievably if the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
Furthermore, to succeed in a petition based on adultery, the petitioner must prove:
That the spouse committed adultery:
To establish adultery, there must be:
(a) sexual intercourse,
(b) the sexual intercourse must be voluntary, and
(c) one of the parties must be married2.
Direct proof of adultery is challenging unless the act was witnessed. However, adultery could be inferred from certain conducts or it could be proved through circumstantial evidence.
Proving Adultery through Circumstantial Evidence in Proving Adultery and Divorce in Nigeria
Adultery is often proved by circumstantial evidence. Circumstantial evidence is indirect and does not directly prove a fact in question on its face. Instead, it leads to a logical conclusion that the fact exists, requiring additional reasonable inferences to support the claim. Some of the circumstances from which adultery could be inferred includes:
Familiarity and opportunity: If parties are intimate and have been together in circumstances where adultery could reasonably be inferred, it will be presumed unless proven otherwise.
Venereal disease: If the petitioner can prove that the respondent contracted a venereal disease from a third party during the marriage, it suggests adultery.
Brothel visits: If a spouse visits a brothel with a third party, it is presumed they have committed adultery.
Confessions and admissions: These are scrutinized due to the potential for fabrication. The court considers all circumstances, including the confessing party's desire for divorce, and usually requires corroboration
The birth of a child: Gestation periods are considered. For instance, if a spouse has children with another party, it can be evidence of adultery.
Frequent hotel visits can also infer adultery. For example, if a husband frequently visits hotels and returns home drunk late at night, it may indicate adultery
Intolerability and Condonation
In addition to proving adultery, the petitioner must show that he/she found the adultery intolerable. Forgiving or condoning adulterous acts is a bar to the dissolution of marriage. Thus, to succeed in your petition for divorce, you must establish that you did not condone your spouse's adulterous acts.
Joining the Co-Adulterer in Divorces Cases
In addition to proving Adultery and intolerability, for a petition for dissolution of marriage relying on adultery to be successful, the petitioner must join the co-adulterer as a co-respondent. For example, if Emeka cheated on his wife with Ann and the wife found his actions unbearable and wants a divorce, she must join Ann as a co-respondent in the divorce petition.
Failure to join the co-adulterer is a fundamental defect that robs the court of jurisdiction to entertain the petition3. However, this rule is inapplicable if:
1. The adulterer is dead.
2. The alleged adulterer is under 14 years old.
3. The alleged adulterer is an infant under 21 years old with whom incest is committed by either party to the petition.
Damages for Adultery in Divorce Cases
Section 31 of the Matrimonial Causes Act, Cap. M7 LFN, 2004, allows you to claim damages from the person who committed adultery with your partner. However, the court will not award damages if:
1. The adultery has been forgiven.
2. The divorce is not granted based on the adultery.
3. The adultery occurred more than three years before the divorce petition was filed.
This principle was applied in the case of Kadiri vs. Abo,4 where the sum of ₦2,000,000 (Two Million Naira) awarded to the wife as damages for adultery against the husband's mistress was set aside by the Court of Appeal because she filed the petition more than three years after the adultery took place.
However, even if the adultery was committed over three years before the petition, an action for damages can be brought if the adultery was continuous. For example, in Alabi vs. Alabi, the initial act of adultery was discovered when the husband's mistress gave birth to a son. By the time the petition was filed, more than three years had passed. Nevertheless, the court upheld the wife's claim for damages because the husband's adultery was ongoing.
Conclusion
In conclusion, adultery is a significant issue in Nigerian divorce cases. It is a criminal offense and can give rise to divorce if the spouse finds it intolerable. To prove an irretrievable breakdown of marriage due to adultery, the petitioner must show that the respondent committed adultery and that they find it intolerable. The court considers various factors when determining damages for adultery.
Footnotes
1 Erhahon vs. Erhahon (1997) 6NWLR (Pt. 510) 667
2 Alabi vs. Alabi (2007) 9NWLR (Pt. 1039) 297
3 Ebe vs. Ebe (2004) 3NWLR (Pt. 860) 215
4 (2024) 8 NWLR (Pt. 1940) 337
19 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.
