DIVORCE IN NIGERIA
Divorce in Nigeria depends on the type of marriage conducted. There are primarily two major types of marriage in Nigeria. Statutory marriage, which is conducted under the Matrimonial Causes Act (“the Act”) and Customary Marriage conducted under customs and tradition
A Statutory marriage (otherwise and popularly known as Court marriage) is simply the marriage conducted in a registry or place (churches) licenced. Where a church that conducted the marriage is not one of the ones licensed in accordance with the Act, such marriage would be deemed to be customary marriage.
Customary marriages are usually the types of marriage conducted in a traditional way. Islamic marriage is also considered to be customary marriage, the same as the marriages conducted in unlicensed churches.
The above emphasis on different types of marriage is important because it will determine the types of Court that has jurisdiction or power to hear the divorce case.
Where a marriage is considered to be Statutory Marriage, it is the State High Courts and High Court of Federal Capital Territory that have the jurisdiction to hear the case and dissolve the marriage. Where a marriage is considered to be Customary Marriage, the Customary Court in each local government is empowered to adjudicate it.
A party seeking to dissolve a marriage is known as Petitioner, while the other party being sued for divorce is known as Respondent.
GROUND FOR DIVORCE
Subject to the provisions of the Act, there is only one ground upon which the court is entitled to dissolve a marriage- that the marriage has broken down irretrievably. However, subject to the provision of Section 15 (2) (a)-(h) of the Act, there are 8 various species or classes of the breakdown. And the 8 classes shall be restated as follows:
a. that the respondent has willfully and persistently refused to consummate the marriage;
b. that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
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;
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 a decree 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 or restitution of conjugal rights made under this Act;
h. that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
By and large, it is obvious the reasons for grounds for the breakdown of marriage are expanded enough to contain most of the issues couple ordinarily raised in the divorce. However, each and every one of them could also pose huge difficulties to establish in Court. A party contemplating dissolution of marriage can contact a lawyer to discuss the specific reasons upon which the divorce is being sought for more explanation on each of the species of the breakdown and how they fit into individual circumstances.
The Petitioner authorizing a lawyer to institute a divorce petition usually commences the divorce process. Such a petition will be served on the husband or wife to be divorced and such spouse has up to 28 days to respond to it. The Court might go-ahead to give judgment and dissolve the marriage where the party served the divorce petition and hearing notices failed to respond by filing an answer to the petition.
A party who has been served with a petition for divorce, but believes that all facts contained in the petition that was served on him or her are wrong and such party wants the court to dissolve the marriage other than the reasons giving by his/her spouse may also contact a lawyer to file what is known as a cross-petition against his or her spouse, praying the court to still go ahead to dissolve the marriage, but on different reasons from the ones initially alleged by his or her spouse.
DIVORCING A NIGERIAN FROM ABROAD
In respect of people seeking to know how to divorce Nigerian man by someone who is not a Nigerian citizen or who does not reside in Nigeria, the procedure and requirements are almost the same. However, it is important to note that a divorce process cannot be completely done in absentia. Anyone seeking to divorce a Nigerian husband or wife must be prepared to testify in court to give evidence on the hearing of the divorce petition. But since a divorce process is purely civil matter, a lawyer can represent the petitioner or respondent in all of the court sittings and the appearance of any of the parties in court is not mandatory at every sitting, save for such party is giving evidence in court.
COST OF GETTING A DIVORCE IN NIGERIA
Divorce in Nigeria can be said to be a little expensive, as it has been widely reported. Most people contemplating the dissolution of a marriage often wish to know the cost of getting a divorce in Nigeria. The truth is that there is no specific or fixed cost for such a process. The reason is that divorce proceeding involves proper litigation, which can be won or lost. In this regard, it is advised that anyone contemplating divorce should talk and bargain with his or her lawyer for an affordable cost. However, a lawyer would likely charge lower for a divorce matter that is unlikely going to be very contentious or for customary marriage’s divorce case, compared to extremely contentious statutory marriage’s divorce. The location of the court where the divorce petition is to be filed can also determine the duration and overall cost of such a process, as the process may be faster to conclude in some courts compared to others. Like it has been previously said above, the important determinant in the cost of divorce is the likelihood of contention in the proceedings. Meanwhile, a divorce petitioner or respondent contemplating or facing divorce proceedings where matters such as custody of the children and settlement of properties are in high contention is advised to consult an experienced lawyer or law firm for such matter, and bargain for a best possible fee.
CAN SOMEONE DIVORCE WITHOUT A LAWYER IN NIGERIA?
We often receive this type of questions from the members of the public who because of the temporary financial difficulties are unable to afford the engagement of the services of a lawyer for divorce matters. Meanwhile, the answer to the above question is both Yes and No. It is YES in the sense that a divorce petitioner at the customary court does not necessarily require a lawyer to engage in a divorce process. A party with a customary marriage may simply engage the services of a lawyer only for the drafting of the simple customary court divorce petition and represent himself or herself personally in the court. However, a person divorcing in a customary court is also advised to engage the services of a lawyer where there is a likelihood of contention in such a divorce matter.
The answer to the above question can also be said to be NO, where the marriage to be divorced is a statutory marriage. This is because a statutory marriage can only be divorced at the High Court, which is a court of a superior record. It is a court that is strictly adhered to certain norms and rules and non-lawyer might not be able to competently represent himself or herself in such a court. Therefore, the services of a lawyer are not only required to draft the lengthy divorce petition at the High Court, but lawyers are also required to represent either the divorce parties (petitioner and respondent) throughout the divorce process.
An indigent person with statutory marriage seeking a divorce may contact any law firm in his or her vicinity to inquire whether they offer pro-bono services. However, lawyers rarely offer pro-bono or free services for a divorce matter because it is not considered a grave legal problem that could warrant the free services of lawyers, but a lawyer may subsidize the cost of divorce for an indigent person on the compassionate ground.
DURATION OF A DIVORCE
One question every divorce petitioner often seek to know is: how long does a divorce process take in Nigeria? A divorce at customary marriage may be as quick as 3 months in customary, especially where there are no contentions. But the divorce of statutory marriage in High Court may never be less than 6 months even without any contention. In fact, a highly contentious divorce case could take more than 2 years to be concluded.
We have had situations where some unknown third consultants who are not lawyers have tried to mislead people about concluding a statutory divorce case within 2 months, this is absolutely falsehood and fallacies. Any person seeking to engage in a divorce should only speak with a lawyer of good standing at the bar who can tell him or her the whole truths. An honest lawyer will never represent to someone that a divorce of a statutory marriage can be concluded in less than 2 months.
In conclusion, it is worthy of note that the divorce the process has never been an easy or smooth process in Nigeria. The Nigerian courts are often not enthusiastic to divorce couple. Moreover, our laws, especially the Matrimonial Causes Act and the Matrimonial Causes Rules, which govern the divorce proceedings in Nigeria are not tailored to support an easy divorce. The Nigerian laws are more resistant to divorce because of the need to protect family values and children of the marriage. For instance, with the huge increase in the Nigerian population and with high numbers of the divorce petitions, a statutory marriage divorce can only still be filed and heard in the High court of the states, which are few in numbers. The process would have been less thorny had the courts of summary jurisdiction like Magistrate courts are allowed to hear a divorce case. Giving a jurisdiction or permission to Magistrate Courts to hear a divorce petition would require the amendment of the Nigerian main divorce legislation, the Matrimonial Causes Act by the National Assembly.
Written by Family Law Team at Resolution Law Firm, Nigeria.