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THE PRINCIPLE OF NO FAULT DIVORCE IN NIGERIA

NO FAULT DIVORCE IN NIGERIA

A no-fault divorce is a form of dissolution of marriage where the proof of wrongdoing is not required to be shown by either party.  A no fault divorce in Nigeria is indirectly provided by the virtue of Section 15(1) and Section 15 (2) ( e ) and ( f ) of the Matrimonial Causes Act L.F.N. 1990 (the Act)

Before analyzing the Nigerian provisions of laws stipulated above, it is worthy of the note to state that no law expressly provided for no fault divorce in Nigeria unlike what is currently available in all states of the United States where a couple or a spouse may bring a divorce petition merely on irreconcilable differences without necessarily alleging any wrongdoing or trade blames.

Under the Nigerian law, a party seeking to divorce is mandated to satisfy the provision of Section 15(1) of the Matrimonial Causes Act, which provides as follows:

“A petition under this Decree (Act) by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.

Unlike in the United States of America where a party can just assert the above ground without any further proof, under the Nigerian law, a party seeking to divorce must also comply with the provisions of Section 15 (2) of the Act, which provides as follows:

The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts:

  1. a) 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 does not object to the decree of dissolution being granted
  6. 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
  7. 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.
  8. 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.

It is obvious that the process for divorce in Nigeria is largely predicated on a fault basis. The Nigerian current system of divorce was largely copied from the British adversarial divorce process, which its change or amendment is likely to take place in the year 2020 pursuant to the proposed legislation in the British parliament.

However, considering the Section 15(2) (e) and (f) of the Matrimonial Causes Act of Nigeria, it is obvious some sort of limited no fault divorce is available for the couple who intend to divorce without necessarily throw any blames.

Section 15(2) ( e ) of the Act allows a couple to file for divorce without trading any blames only if the couple have been separated for a period of two years and they both consented to divorce. With the provision of this Act, either of the couple who have not cohabited for two years can file for a divorce without alleging or apportioning any blame to the other party, provided he or she will not oppose the divorce.

Another provision for a limited no fault divorce in Nigeria is the provision of Section 15(2) (f) of the Act which provides that where the couple has lived apart for a period of at least 3 years immediately preceding the presentation of the divorce petition. This implies that a couple who have lived apart for a minimum of three years needs not to provide further facts by apportioning blames to the other party in order to get a divorce. In the case of Ochei v. Ochei (1973) E.C.S.N.L.R., it was affirmed that a divorce court has no further discretion to exercise as to which of the party who caused the living apart when the Oputa J. stated as follows “ … the court has not got to consider the domestic history of the parties in order to decide who is the guilty party in the living apart”

In conclusion, it is right to conclude that there is a limited no fault divorce allowed in Nigeria, but strictly subject to the provisions of Section 15(2) (e)(f). The major benefit of the no-fault divorce is that it enables the family who is going through difficulties of divorce to suffer no additional pain of having had to divulge the privileged family information to a public court, which may further affect the quick healing and recovery needed by the couple, especially when they still both have children together who may suffer the consequence of the family separation.

By Olusola Jegede, MCIArb. a Partner and Litigation Lawyer at Resolution Law Firm

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