A. Introduction
There has been an increase in the reported cases of spouses killing each other in the news these days in Nigeria. These are times when divorce is becoming a reasonable option, considering the fact that “a living dog is better than a dead lion”.
This edition of AkintundeEsan’s Legal Illumination is focused on those who divorce has become not just the reasonable but, also the inevitable option, in order for them to maintain their sanity or to remain alive for themselves and their children.
Under the Matrimonial Causes Act, which is the existing law on how to get a divorce in Nigeria, there are conditions precedents to be met before the Court can grant a petition for dissolution of a statutory marriage.
Thus, I have set out below the conditions precedent the Courts will consider before granting a Petition for divorce or dissolution of a statutory marriage in Nigeria.
B. Divorce within Two Years of Marriage
The Court will not grant a divorce Petition to dissolve a marriage that is not upto two years old[1]except if the offending spouse is involved in:
a. willful andpersistent refusal to consummate the marriage,
b. adultery,
c. commission of rape,
d. sodomy orbestiality,
Other than the above grounds the offended spouse will need the leave or permission of the court to file for divorce within two years of his or her marriage and the court usually will not grant leave to institute proceedings except on the ground that to refuse to grant the leave would impose exceptional hardship on the offended spouse or that the case is one involving exceptional depravity on the part of the offending spouse.
In determining an application for leave to institute proceedings under this section, the court shall have regard to the interest of any children of the marriage, and to the question whether there is any reasonable probability of reconciliation between the parties before the expiration of the period of two years after the date of the marriage.
C. The Importance of filing a Verifying Affidavit
On the importance of filing a Verifying Affidavit, it was held by the Court of Appeal[2]that:
"Most instructively, theprovisions of Order V Rule 10(1) of the Matrimonial Causes Rules, 1983 (supra)are to the effect: A petition shall, by an affidavit written on his petitionand sworn to before this petition is filed:
(a) Verify the facts stated in his position of which he has personalknowledge.
And
(b) Depose as his belief in the truth of every other fact stated in thepetition.
Unfortunately, for the Appellant, hehas failed to strictly comply with the foregoing requirements of the Matrimonial Causes Rules Order V Rule 10(1) (supra). Consequent whereupon, the entire originating on which the Appellant's petition is predicated is rendered incompetent, and liable to be struck out by the Court."
D. Grounds for Divorce
By virtue of Section 15(1) of MatrimonialCauses Act, the Court has the jurisdiction to make an order dissolving a marriage under the Act (a statutory marriage) only on the ground that, the marriage has broken down irretrievably.
However, in Nigeria, a Court cannot dissolve a marriage or declare a marriage to have broken down unless one of thefacts listed in Section 15(2) is established by the Petitioner, even though it appears the marriage has broken down irretrievably[3].An occurrence of any of the following eight situations or facts in the eyes ofthe Court is a conclusive proof that a marriage has broken down irretrievably.
1. Willfully and persistently refusal to have sexual intercourse [4].
2. Adultery and intolerable behaviours to live with [5].
3. Where a spouse has behaved in such away that the aggrieved spouse cannot reasonably be expected to live with the offending spouse. Section 15(2) (c). Section 16(1) set out the behaviours that can be said to be the ones that a person cannot be reasonably expected tolive with to include:
a) Commission of sexual offences such as: committed rape, sodomy, or bestiality.
b) Habitual drunkenness or drug addiction: for a period of not less than two years.
c) Frequent convictions and imprisonment for crime.
d) Habitually leaving a spouse without reasonable means of Support.
e) Attempt to murder and assault spouse
f) Habitual and wilful failure to provide court ordered or agreed support for two years.
g) Insanity and unsoundness of mind
4. Where a spouse has deserted the other spouse for a continuous period of at least one year.[6] 5. Where the parties to a marriage have lived apart for a continuous period of at least two years and one of the parties does not object to the marriage being dissolved.
6. However, where the parties to a marriage have lived apart for a continuous period of at least three years theconsent of the other party is not required [7].
7. Where your spouse for a period of notless than one year, failed to comply with a court order of restitution of conjugal rights.
8. Where your spouse is missing for sucha long time or seven year in such circumstances as to provide reasonable ground for presume he or she is dead or has no reason to believe that the spouse isalive.
E. Claim for Damages or Compensation
In divorce proceedings, the party claiming damages must justify his or her claims and also that his or her conduct was not responsible for the damages suffered. Award of costs in divorce proceedings does not depend on who the successful party is. Rather the more important consideration is whose conduct ignites the litigation or the breakdown of the marriage. An erring party should not be encouraged to benefit fromhis/her self-manufactured fault[8].
F. Claim for Maintenance
Subject to Section 70 of the Matrimonial Causes Act, the Court may, in proceedings with respect to the maintenance of a party to a marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the partiesto the marriage and all other relevant circumstances."
Where the appellant was, at that time, an Assistant Chief Administrative Officer on GL.13 which was exactly equivalent mutatis mutandis to that of the respondent who was an Assistant Chief Account on the same salary grade level. It was held that the conclusion of the trial Judge that the claim to maintenance is unsustainable on the ground that the status or standing in life of the appellant is parallel to that of the respondent is flawless and not reproachful.[9]
G. Claim of Joint Ownership of Property
He who asserts must prove. Further assertion or re-assertion does not prove initial assertions. It therefore behooved the appellant to prove that she jointly owned and built the said property with the respondent in order to succeed in claim in paragraph 13 (h) of the Amended Answer and Cross Petition. The burden on her becomes more glaring from the stout denial of the assertion by the respondent. In any case, the trite principle of law and common sense is that, what is alleged without proof can be denied without proof[10].
H. He who comes to Equity must have his Hands Clean
The Court held that, the appellant'sconduct of breeding a child out of wedlock during the subsistence of her marriage with the respondent makes her undeserving of damages. He who comes to equity must have his hands clean. The hands of the appellant in this case are terribly dirty. The law will not assist her to benefit from her own wrongdoing.[11]
I. Decree Absolute
A decree absolute is not and cannever be pronounced by a court. It is a process maturity rather than pronouncement.
J. Domicile
A person's DOMICILE generally speaking means the place where he has his permanent home and whether he goeseast or west, north or south he would always come back to it. There basically three types of domicile namely domicile of origin, domicile of choice and matrimonial domicile.
The facts upon which the court will make the findings about being domiciled in Nigeria are required to be stated in the petition by Order 5 rule 3. The court must look at all the facts for the determination of domicile.
The burden of proving that a domicile has been chosen in substitution for the domicile of origin is on the person whoasserts that the domicile of origin is lost - the intention must be proved with perfect clearness[12].
K. Jurisdiction of Court
Jurisdiction of Court to hear a Divorce Petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the Court with jurisdiction to adjudicate on a divorce matter is the Court of the domicile of the husband [13].
L. Conclusion
There are times when divorce is not areasonable option considering your children, what you have mutually invested inthe marriage and the signs that reconciliation is possible. However, when yourmarriage becomes injurious or poisonous to your children/child, health, life and destiny and it appears divorce is the only reasonable option, you cancontact (Akintunde Esan, the Legal Adviser Online) for further legalillumination.
[1] Section 30(1) and (2) of theMatrimonial Causes Act [2]Okon v. Okon (2016)LPELR-42056(CA)Per SAULAWA, J.C.A. (Pp. 12-13, Paras. F-C) [3]Per Ariwoola, J.C.A (P. 24,paras. C-G) LT. Col. Shehu Ibrahim (Rtd) v. MercyIbrahim (2006) LPELR-7670(CA) [7]Section 15(2)(e) and (f). [8] Enwezorv Enwezor & Anor(2012) LPELR-8544(CA) [9]Neghenebor Vs Negbenebor (1971) 1ALL NLR 210 pg. 176 paras A-C. Enwezor vEnwezor & Anor (supra) Per Mukhtar,J.C.A. (Pp. 22-23, paras. D-E) [10] Enwezorv Enwezor & Anor(supra) [11]Enwezor v Enwezor & Anor(supra) [12]Winans v. A.G. (1904) AC 287at290; Bhojwani v. Bhojwani (1995) 7 NWLR (Pt.407) 349. Omotunde v. Omotunde (2001) 9 NWLR(Pt.718)525 [13] Bhojwaniv Bhojwani (1996) 6 NWLR(pt.457) 661. Omotunde v. Omotunde (2000)LPELR-10194(CA) Per ONALAJA, J.C.A.(P. 64, paras. D-F)
