Dissolution of marriage popularly called divorce is the putting an end to a lawful marriage by a decree of dissolution. The application for dissolution of marriage is instituted by a petition in the High Court by a petitioner seeking to bring an end to the marriage.
The High Court does not grant the dissolution of marriage without the petitioner proving competent facts to support the dissolution. The laws that guide divorce in Nigeria is the Matrimonial Causes Act 1970 and The Matrimonial Causes Rule 1983.
The Act stipulates that a marriage under two (2) years cannot be dissolved, this is called the two-year rule 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”. Thus to institute a petition for a marriage less than 2 years, the permission of the court must be sought by a motion ex-parte along with the petition for divorce.
In our previous article, we extensively discussed the divorce process in Nigeria.
Grounds for Dissolution
There is technically a sole ground for which the petition for dissolution of marriage can be instituted, which is that “the marriage has broken down irretrievably.” This means that the cause of the breakdown is so severe that the marriage cannot be saved. The ground can be proved through these facts as provided in Section 15 (2) of the Matrimonial Causes Act 1970 as follows:
- a. That the respondent has willingly and persistently refused to consummate the marriage. For this fact to be pleaded, the petitioner must prove that there has been no sexual intercourse between him or her and the petitioner, but where it is proved that sex occurred even once, the marriage will be deemed consummated, and therefore the petitioner cannot rely on this ground for divorce.
- b. That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. For this fact to hold water in court, the petitioner must prove that not only does the other party commit adultery but he/she finds it unbearable to live with such infidelity.
- 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.
- 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.
- e. That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the petitioner does not object to the decree of dissolution being granted
- f. That 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. That the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal right made under the Marriage Causes Act.
- 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.
A petition for dissolution of marriage can be presented on the ground that the marriage has broken down irretrievably and the court upon hearing the petition will only grant the order for dissolution of marriage where the petitioner satisfies the court of one or more of the facts listed above.
By Family Law Department at Resolution Law Firm, Nigeria