There are several reasons and grounds for divorce in Nigeria, but regardless of the reason for wanting to end a marriage between parties, the law states that the sole grounds for divorce in Nigeria is that the "marriage has broken down irretrievably".
The Matrimonial Causes Act 1970 (the Act) and the Matrimonial Causes Rules 1983 are the primary laws that govern matrimonial causes such as divorce, annulment, legal separation, etc of marriage in Nigeria. The Act provides that the court with jurisdiction to hear and determine matrimonial causes is the High Court of any State of the Federation.
It is trite to state that for a marriage to undergo divorce proceedings in court for whatever reason, such marriage must be a statutory marriage legally conducted and evidenced by a valid Marriage Certificate. A statutory marriage is one celebrated under the Act and it confers jurisdiction on the State High Court to determine the petition for dissolution of marriage.
However, the law stipulates that a marriage under two (2) years cannot be dissolved; this is called the two-year rule. This is provided for under Section 30 of the Act which states that "subject to this section proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by the leave of court". Such marriage can only be dissolved on the reason where the petitioner instituting the divorce petition by leave (permission) of the Judge and can prove that exceptional hardship or that the case is one that involves exceptional depravity which will be caused if the marriage is not dissolved, as provided in Section 30 (3) of the Act. A lawyer engaged for the divorce proceedings would be the one to obtain this leave for the petitioner by filing the necessary application in court.
In divorce proceedings, the party filing the case is called or designated as the Petitioner while the other spouse sued is the Respondent.
Ground for Dissolution of Marriage
The sole ground for instituting an action for divorce in Nigeria is that the marriage has broken down irretrievably. This means that the reason for wanting to dissolve the marriage is so critical that the marriage can no longer be repaired.
However, the Act under Section 15 (2) (a-h) and Section 16 states the particulars of fact that must be proved by the Petitioner upon which the grounds for dissolution of marriage can arise, These eight paragraphs are main reasons for the divorce, and a party seeking to divorce in Nigeria only require to establish just one of them in court. These eight facts are as follows;
a) That the respondent has willingly and persistently refused to consummate the marriage. The petitioner must prove that the respondent has failed to have sexual intercourse. But where it is proved that sex occurred even once, the marriage will be deemed consummated and therefore the petitioner cannot rely on this reason as a ground for divorce.
b) That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent. This particular reason is often the most difficult one to prove out of all the eight reasons because two important factors. First proving adultery can only be done by involving another third party, the person the Respondent committed adultery with. Second, adultery or sexual intercourse are often done in private, so it may be difficult to prove in real sense. In practice, it is the petitioner often relies on another reason or fact if such is available due to difficulties often encounter in proving adultery.
c) That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the respondent. The facts that can be relied on by proving any of this fact are provided under Section 16 of the Act, although not exhausted. A large percentage of divorce proceedings filed in Nigeria are based on this fact, because it provides room for many situations that may be considered cruelty or intolerable for any reasonable spouse to endure.
d) That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition. The desertion means that the Respondent has abandoned the matrimonial home without justification or without the consent of the Petitioner. This reason will fail if the petitioner actually approved of the desertion.
e) That 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 the decree of dissolution being granted. Where the Respondent objects, this petition may collapse.
f) That the parties to the marriage has lived apart for a continuous period of at least three years immediately preceding the presentation of the petition. This is known as no-fault basis in divorce proceedings. Where a divorce petition has been filed based on this reason, the presiding judge has no other discretion than to dissolve the marriage.
g) That the other party to the marriage has for a period not less than one year failed to comply with a decree of restitution of conjugal right made under the Marriage Causes Act. Filing a divorce based on this reason is not often common in Nigeria.
h) That the other party to the marriage has been absent from the petitioner for such time and in such circumstances has to provide reasonable grounds for presuming that he/ she is dead. For someone to be presumed dead under the law, such a person must have been missing for up to seven years in accordance with the provision of the law. This fact is another reason not often common in Nigerian divorce proceedings.
To successfully institute an action for divorce and for a judgment to be granted in favour of the Petitioner, he/she must successfully satisfy the court of any one or more of the facts stated above before the court can make a decree for the dissolution of marriage.
When the any of the reasons above have been successfully proved by the Petitioner, the court can make an order for a decree nisi, which is often contained in the judgement of the court. The order often automatically become absolute within a period of three months in the absence of any appeal from the affected party. The three months window gives the other party an opportunity to appeal the decision of the court. The decree nisi shall become absolute three months after its grant as provided under the Section 58 of the Act. When the decree nisi has become absolute after three months, there is no right to appeal the decision of the court again. Where any of the parties died before three months after the grant of the decree nisi, it shall not become absolute. In the case of Nkiru Amobi v. Grace O. Nzegwu, the Supreme Court held that despite the grant of decree nisi, the Petitioner and Respondent are still considered married until the decree has become absolute in accordance with the Act.
The marriage is completely dissolved where the Order of Decree Absolute is made by the Court. The effect of dissolving a statutory marriage is that a party to the marriage can marry again as if the marriage had been resolved by death.
Matrimonial cases in Nigeria are very sensitive to determine by the Court and it is not easy for a marriage union to be declared broken. For a statutory marriage to be dissolved, the Petitioner must successfully prove with good reasons one or more of the facts stated above to justify that the marriage has broken down irretrievably.
The court hearing a deciding a divorce case in Nigeria also has power to grant orders as to the maintenance of any of the parties or children of the marriage. The court can also make orders for distribution of any joint assets.
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.