LAWS OF DIVORCE IN NIGERIA
Divorce is a legal means of bringing a statutory marriage to an end through the court system and for a marriage to undergo divorce proceedings in the High Court, such marriage must be one of those governed by the Matrimonial Causes Act LFN 2004 (the Act), such as marriages conducted in a licensed place of worship, a registrar’s office and marriage under special license and evidenced by a valid Marriage Certificate.
The Matrimonial Causes Act LFN 2004 (S.11) directs the court not to grant divorce petitions quickly and instead to encourage couples to try reconciliation. The law also requires the court to first act as a conciliator, attempting to reconcile the marriage.
WHICH COURT HAS THE JURISDICTION TO DETERMINE THE DISSOLUTION OF MARRIAGE?
Any High Court of any State of the Federation and the Federal Capital Territory has jurisdiction to determine a petition for dissolution of marriage. Thus, no matter which state where the marriage is conducted, jurisdiction is nationwide and divorce proceedings can be commenced in any state. Furthermore, for a court to have jurisdiction over a petition for dissolution of marriage, one of the parties must be a Nigerian citizen (not overseas) or have a domicile in Nigeria. For the purposes of domicile, Nigeria is treated as a single federation entity. As a result, a person who is domiciled in any state of the Federation is regarded to be domiciled in Nigeria and can file a divorce petition in any state in the country, regardless of whether he or she is domiciled there or elsewhere.
The court has the authority to transfer a divorce case filed in a State High Court to any other State High Court in the Federation under the rule of “forum convenience,” particularly if it is in the interests of justice to have the case heard in the other State or if the other party has no objection.
GROUNDS FOR DIVORCE IN NIGERIA
The primary ground for divorce in Nigeria is that the marriage has broken down irretrievably. This is the provision of s.15 of the Matrimonial Cause Act LFN 2004.
The expression “broken down irretrievably” suggests that there is nothing that can be done to make the marriage work again, and divorce is the only option.
Flowing from that singular ground, the Act in section 15(2) specifies the reasons why a marriage would be considered to have broken down irretrievably as follows:
- When a partner is unfaithful, and the other partner cannot tolerate the extramarital affairs can be a reason for divorce.
- When a partner is denying the other partner sex or lovemaking or when one partner due to mental or health conditions cannot grant sex or sexually satisfy the other partner can be a valid ground for divorce. This is called the inability to consummate the marriage.
- When a partner exhibits a character that is annoying to the other partner that the other partner can no longer tolerate, the habit can be a valid reason for a partner to file for divorce. For instance, a wife can file for divorce on the grounds that the man is a serial drunkard.
- When a partner has deserted the marriage or left the other partner and becomes incommunicado for up to a year is a reason to seek divorce.
- When the couples have separated and been living apart for a period of two years and none of them objects to the dissolution of marriage being granted by the court.
- When both couples have separated and been living apart for a period of three years. If a divorce is predicated on this reason, the court has no other discretion to exercise than to grant the divorce. See the case of Omotunde v. Omotunde (2001) 9 NWLR (pt. 718) 525.
- When the other party has for a period of not less than a year failed to comply with the order of the court to resume cohabitation and restitution on the conjugal right (having sexual intercourse again).
- When one of the couples has been missing for at least seven years, which is enough for him or her to be presumed to have been dead.
When any of the reasons above is why a partner is seeking a divorce, it must be established that it leads to the primary ground which is that it made the marriage to have broken irretrievably.
Also, courts will be hesitant to grant partners divorce for a marriage that is less than two years, this is called the two years rule. The exception to this Two-Years Rule by virtue of section 30 (2) MCA applies as follows;
- where the respondent has willfully and persistently refused to consummate the marriage;
- that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- since the marriage, the respondent has committed rape, sodomy, or bestiality;
- proceedings for a decree of dissolution of marriage by way of cross-proceedings.
The law according to Section 30 of the Act provides that it is only with the leave (permission) of the court that a proceeding for divorce and separation of marriage that is less than two years can be commenced.
The Court will issue an order for a decree nisi if any or all of the foregoing are proven. A nisi order is a temporary order that separates the marriage. In the absence of any appeal by the affected party, the order automatically becomes absolute (i.e. permanent) after three (3) months. When the Court issues an absolute decree, the marriage is entirely dissolved.
Neither party has the right to challenge the High Court’s decision if the decree nisi has become absolute and one of the parties dies before the three (3) month period has passed.
However, a Petitioner in a suit for dissolution of marriage may not succeed in getting a divorce order if he/she has condoned any of the facts provided for under Section 15 (2) of the Act already discussed above.
The dissolution of a statutory marriage has the effect of allowing any of the parties to marry again. When a judge deems a marriage dissolved, the parties are legally free and single, as free as birds to mix and enter another marriage if they so desire.
In conclusion, every marriage is unique, and each has its own set of unique facts about which couples should seek legal advice and guidance while contemplating a dissolution of such a marriage.
By Family Law Team at Resolution Law Firm