In accordance with the provisions of the Matrimonial Causes Act (“the Act”), for a marriage to be dissolved by the High Court, it must be a statutory marriage evidenced by a Marriage Certificate. A statutory marriage is one celebrated under the Act and it confers jurisdiction of the Court to hear the petition for dissolution of marriage.
The law that governs matrimonial causes in Nigeria is the Marriage Act, the Matrimonial Causes Act 1970 and the Matrimonial Causes Rules 1983. These laws provide for the rules governing matrimonial matters, procedures and grounds relating to matrimonial causes. The Act provides that the court with jurisdiction that has authority to hear and determine matrimonial causes is the High Court of any State of the Federation as provided under the Section 2 of the Act. The action for dissolution of marriage is ordinarily instituted by a virtue of Petition filed by the person bringing the action called the Petitioner and the party who it is brought against that is called the Respondent. The Respondent replies to the filed petition by a way of Answer or Cross-Petition.
The law stipulates that a marriage under two (2) years cannot be dissolved; this is called the two-year rule. It is provided for under Section 30 of the Act, which states “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”.
Although to every rule there must be an exception. Consequently, in exceptional cases, a marriage under 2 years can be dissolved where the petitioner bringing the action for divorce 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 it is provided for under Section 30 (3) of the Act. The court in determining the application for leave to institute proceedings of dissolution of the marriage under two years will consider the interest of any children of the marriage and question whether there would be any probability of a reconciliation between the parties before the expiration of the period of two years after the date of marriage.
It would be trite to state that before the court dissolves a marriage, the court has the duty to consider the possibility of parties reconciling as provided under the Section 11 of the Act. So before a court in Nigeria dissolves a marital union, it must be satisfied that there is no possibility of parties to reconcile. Sometimes the court may refer the parties to mediation for the sole purpose of possible reconciliation. But where after exploring the possibilities for reconciliation and the parties failed, the court will have no choice but to dissolve the marriage.
Ground for Dissolution of Marriage
The Act under Section 15 to 16 states the ground for dissolution of marriage and the particulars of fact upon which the grounds for dissolution of marriage can arise. The sole ground for instituting an action for dissolution of marriage in Nigeria is that the marriage has broken down irretrievably. What this means is that the reason for the petition is so severe that the marriage cannot be repaired.
It is further stated that for the court to hear a petition for the dissolution of marriage, the petitioner must satisfy the court of at least one or more of the facts stated below:
- That the respondent has willingly and persistently refused to consummate the marriage. For this fact to be pleaded, the petitioner must prove that the respondent has failed to have sexual intercourse h he/she, 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.
- 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.
- That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
- 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.
- 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 does not object to the decree of dissolution being granted
- 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
- 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.
- 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.
The action for dissolution of a statutory marriage can be brought under any one or more of the facts stated above before the court can make a decree for dissolution of marriage.
The decrees the High Court of the State can make are two orders called Decree Nisi and Decree Absolute. This means that the Decree Nisi is made first and this order gives the opportunity of the other party to appeal the decision of the court and the second order of Decree absolute is made 3 months after the first decree as provided under section 58 of the Act. The Decree Nisi is made absolute after 3 months where no appeal is made and there is no right to appeal the decision of the court after it has been made absolute.
The marriage is completely dissolved where the order of decree absolute is made. The effect of dissolving a statutory marriage is that a party to the marriage can marry again as if the marriage had been dissolved by death.
The process for a divorce in Nigeria is a very sensitive one and it is not easy for a marital union to be declared irretrievably broken down. For a statutory marriage to be dissolved, the court must be satisfied that the option for settlement has been explored unsuccessfully. If reconciliation failed then it is clear that the marriage has broken down irretrievably and then the court will grant a decree for the dissolution.
The fact listed above must be stated to prove that the marriage cannot be repaired and if possible documentary evidence should be provided for when instituting an action for dissolution of marriage.
By Family Law Department at Resolution Law Firm, Nigeria