GROUNDS FOR GRANTING DIVORCE IN COURT IN NIGERIA

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GROUNDS FOR GRANTING DIVORCE 

IN COURT IN NIGERIA 

              A.  Introduction 

Divorce is the legal dissolution of a marriage and there are different perspectives to the grounds for dissolving a marriage such as the religious, cultural, jurisprudential, sociological, statutory, trendy, mystical and pragmatic perspectives. Take for instance in the Christian faith, adultery is the only recognised ground for divorce.

This edition of Akintunde Esan's legal illumination is focusing on the legal grounds for getting a divorce in Nigeria as provided in the Matrimonial Causes Act, which is the Law regulating the grounds for the filing and processing of a divorce in Nigeria. 

B. Grounds for Divorce of a Customary Marriage

In Nigeria, couples have the choice of having a customary marriage or a statutory marriage. A customary marriage is a marriage contracted under the native law and custom of an ethnic community in Nigeria. A statutory marriage is a marriage contracted under the Marriage Act.  

There are no codified grounds for divorce under native laws in Nigeria, thus, a customary or traditional marriage can be divorced or dissolved on arbitrary grounds. 

The only authority in Nigeria that has the jurisdiction (power) to grant a divorce of a statutory marriage is the High Court, while the Customary Court has the jurisdiction to grant the divorce of a traditional  or customary marriage.

C. The Eight (8) Grounds for the Dissolution of a Statutory Marriage in Nigeria

By virtue of Section 15(1) of Matrimonial Causes Act, the High Court has the jurisdiction to make an order dissolving a statutory marriage only on the general ground that, the marriage has broken down irretrievably.

However, the High Court in coming to the conclusion whether a marriage has broken irretrievably is required to take into consideration the occurrence of one or more of the specific eight (8) grounds set out in sub-section (a) to (h) of Section 15 (2) of the Act. If the spouse seeking the divorce can prove the occurrence of one or more of these grounds, the High Court will have no choice than to grant the prayer for divorce or dissolution of his or her statutory marriage, as this implies that, the marriage has broken down irretrievably in law.  
 
In divorce case between LT. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006) LPELR-7670(CA) Ariwoola, J.C.A at P. 24, paras. C-G, illuminated on the issue of ground and grounds for divorce as follows: 

"The learned counsel contended that there is only one ground for the dissolution of marriage in our law. This with respect may not be totally correct, to say the least, as there are several grounds which the Matrimonial Causes Act refer to as "facts". (See; Sections 15(2) and 16(1), Matrimonial Causes Act.  

However, in Nigeria, a Court cannot dissolve a marriage or declare a marriage to have broken down unless one of the facts listed in Section 15(2) is established by the petitioner, even though it appears the marriage has broken down irretrievably." 

An occurrence of any of the following eight grounds or situations or facts in the eyes of the Matrimonial Causes Act is a conclusive proof that, a marriage has broken down irretrievably or generally and therefore ripe for divorce or dissolution:

Ground 1: Denial of Sexual Intercourse 

This is where a spouse has willfully and persistently refused to have sexual intercourse with an aggrieved spouse. Section 15(2)(a). 

Ground 2: Adultery and Intolerable Behaviours

This where a spouse has committed adultery and the offended spouse find it intolerable to live with the offending spouse. Section 15(2)(b). 

Ground 3: Unreasonable Behaviours

This where a spouse behaves in such a way that the aggrieved spouse cannot reasonably be expected to live with such a  spouse. Section 15(2)(c).

Section 16(1) set out the behaviors that can be said to be the ones that, a person cannot be reasonably expected to live 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 willful failure to provide court ordered or agreed support for two years. 

g) Insanity and unsoundness of mind 

Ground 4: Abandoning of Spouse

Where a spouse has abandoned or deserted the other spouse for a continuous period of at least one year . 

a) The types of desertion: 

i. Simple Desertion: the guilty spouse abandons the matrimonial home. 

ii. Constructive Desertion: The spouse who is in desertion is the spouse who by his or her conduct expels the other spouse and remains at home. 

b) The elements of desertion: 

i. Physical separation or defacto separation: This implies bringing co-habitation to an end by severing marital obligations; or 

ii. Intention to remain permanently separate or animus deserendi 

iii. Absence of the spouse’s consent. 

iv. Absence of any justification: There will be no desertion if the spouse who has withdrawn from cohabitation has a good reason for doing so. 

Ground 5: Living Apart for Two (2) Years

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. 

Ground 6: Living Apart for Three (3) Years

However, where the parties to a marriage have lived apart for a continuous period of at least three years, the consent of the other party is not required before such a marriage can be dissolved. Section 15(2)(e) and (f). 

References to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household. 

Ground 7: Disobedience to Order of Restitution of Conjugal Rights 

Where a spouse for a period of not less than one year, failed to comply with a court order of restitution of conjugal rights. 

Ground 8: Spouse is missing for Seven (7) Years

Where a spouse is missing for such a 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 is alive. 

If the spouse seeking for divorce can prove the occurrence of one or more of these eight grounds mentioned above, the High Court will have no choice than to grant the prayer for divorce or dissolution of his or her statutory marriage, as this implies that, the marriage has broken down irretrievably in law. 

D.  Conclusion

No reasonable man or woman will or would want to divorce his or her spouse, but human nature makes frictions inevitable and some frictions may degenerate or metamorphose into irreconcilable differences that make divorce not just inevitable but reasonable.

There are times when divorce is not a reasonable option considering your children, what you have mutually invested in the marriage and the signs that reconciliation is possible. However, when your marriage becomes injurious or poisonous to your children/child, health, life and destiny and it appears divorce is the only reasonable option.

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”.

Lawyers are undertakers of dead marriages, not ruling out the fact that, some dead marriages do resurrect like the dead body of Lazarus or the prophetic dry bones putting on flesh and rising again. However, marital resurrection is a miracle that happens by choice and not by chance.

If you are in a dilemma on divorce think about the finding of a study at the University of Harvard, which observed that, all the members of family suffering from a high level of conflict, for example where there is persistent abuse or alcoholism, benefit from divorce. However, those marriages with low level of conflict gain more by staying together, and the harm to the children is less than that caused by divorce.

CALL or CHAT with me if you need someone to confide in on your dilemma.

You can also CALL or CHAT with me for further legal illumination on resolving or seeking for a divorce.

Written by Akintunde Esan, Managing Partner/Principal Consultant @ Ase Olodumare Chambers Law Firm, Lagos Nigeria.

GROUNDS FOR GRANTING DIVORCE IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

Also click to view:

CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

NOTICE ! NOTICE !! NOTICE !!!

You also advised to try Ase Olodumare Chambers Divorce Mediation if:

• you are seeking for an amicable and peaceful separation or divorce.

• you are contemplating filing for divorce or separation in Court.

• you are having issues on child custody. 

• you are not formally married but are seeking for amicable and peaceful severance of their marital relationships.

• For more information on Ase Olodumare Chambers Divorce Mediation Initiative click on: BREAKING NEWS ! DIVORCE MEDIATION IN NIGERIA  

LEGAL ISSUES ON JOINT OWNERSHIP OF PROPERTY BETWEEN HUSBAND AND WIFE IN NIGERIA

This legal illumination of Akintunde Esan[1] known as the Legal Adviser Online is on legal issues about marital property. A marital property is a property deemed to be jointly owned by a husband and a wife which their children or child has the right of inheritance over the property as a family property or parents’ property.

A matrimonial home is not necessarily a marital property. In order to ascertain whether a property is a marital property or not, consider the following legal issues[2] to avoid fighting a lost legal battle on a property:

1.The presumption of joint ownership of property exists between husband and wife, while    the marriage subsists, and that, the party that survives the other, inherits such property, and has power to administer it, the way he/she wants, this principle applies especially in statutory law marriages (or monogamous marriage)[i]

2.Most incidents of joint ownership of property between husband and wife occur where a  husband and wife contribute to purchase or to develop or to both purchase and develop a property.

3.The contribution may be financial or material, but it must be substantial and ascertainable.

4. Unless the spouse or child claiming contribution under a spouse is able to provide convincing proof of a direct and substantial contribution to the acquisition of the property, such spouse or child cannot claim joint ownership. This is particularly so where the property in question was purchased in individual name of the husband or wife.

5. In some other cases, a husband may purchase a property in the name of his wife or vice versa. In such circumstances, the law would presume an intention to gift the property. This is called presumption of advancement. Presumption of advancement can be rebutted by proving that no gift was intended.

6.  The mere fact that your mother was married to your father at the time a property was developed is not sufficient ground that the property belonged or devolves naturally on you without extrinsic evidence in support of such claims.

7. If you claim that, a property jointly belongs to your mother and father the burden is on you to provide evidence of joint financial or material contribution by both of them.

In case you seek for further legal illumination on legal issues on marital property in Nigeria, you can contact Akintunde Esan (The Legal Adviser Online) on phone or WhatsApp @ 08073828487 or email @ akintundeesan@gmail.com or @ ASE OLODUMARE CHAMBERS, Oshopey Plaza, 2nd Floor, Left Wing of Front Wing, No.17/19, Allen Avenue, Ikeja, Lagos State.

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[1] Akintunde Esan (known as the legal adviser online) is a Legal Practitioner/Legal Consultant/Chartered Mediator with two decades of litigation and transactional legal practice experience. He is the Managing Partner/Principal Consultant @ Ase Olodumare Chambers, a Lagos based litigation, property and transactional Law Firm.

[2] Per UMAR ,J.C.A in chibuzor & anor v. chibuzor (2018) LPELR-46305(CA)  (Pp. 27-29 paras. E)

[3] of Okere Vs Akaluka (2014) LPELR - 24287 (CA

© 2023  Akintunde Esan All Right Reserved

 

CONDITIONS FOR THE GRANT OF THE DIVORCE OF A MARRIAGE IN NIGERIA

This legal Illumination of Akintunde Esan[1] known as the Legal Advise Online is on the conditions for the grant of divorce or dissolution of a statutory marriage under the statutes regulating how to file for divorce of a statutory marriage in Nigeria known as the Marriage Act and the Matrimonial Causes Act.

A statutory marriage is a marriage which is contracted in accordance with the procedure provided under the Marriage Act and which can only be dissolved or annulled in accordance with the procedure prescribed under the Matrimonial Causes Act.

 

In Nigeria, it is only the High Court that, has the jurisdiction/authority to dissolve a statutory marriage which is usually contracted at a Marriage Registry or at a Church or any Religious Centre licensed to conduct a statutory marriage.[2]

 

The aggrieved spouse who wants the marriage dissolved is referred to as the Petitioner while the other spouse is referred to as the Respondent. The Petitioner is required to file a Court process known as the Petition for a Decree of Dissolution of Marriage on the ground that the marriage has broken down irretrievably.

The Court seized of the Petition for a Decree of Dissolution of a Marriage shall adjudge the marriage to have broken down irretrievably upon the Petitioner satisfying the High Court of one or more of the following conditions[3]:

1.That the Respondent has willfully and persistently refused to consummate the marriage; 

2.That since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

3. That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with. 

4.That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

 5.That the parties to the marriage have lived a part 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;

6. That the parties to the marriage have lived apart for a continuance period of at least three years immediately preceding the presentation of the petition;

 7. 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;

8. 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.

In case you seek for further legal illumination on the conditions precedent for the High Court to grant or not to grant a decree for the dissolution of your marriage in Nigeria, you can contact Akintunde Esan (The Legal Adviser Online) on phone or WhatsApp @ 08073828487 or email @ akintundeesan@gmail.com or @ ASE OLODUMARE CHAMBERS, Oshopey Plaza, 2nd Floor, Left Wing of Front Wing, No.17/19, Allen Avenue, Ikeja, Lagos State.

 

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[1] Akintunde Esan (known as the legal adviser online) is a Legal Practitioner/Legal Consultant/Chartered Mediator with two decades of litigation and transactional legal practice experience. He is the Managing Partner/Principal Consultant @ Ase Olodumare Chambers, a Lagos based litigation and transactional Law Firm.

[2] Section 6 of the Marriage Act

[3] See section 15 (1) and (2) (a) - (h) of the Matrimonial Causes Act; Per Saulawa, J.C.A in Akinlolu v. Akinlolu (2019) LPELR-47416(CA), Pp. 25-26 paras. B

© 2023  Akintunde Esan All Right Reserved

 

DIVORCE IN NIGERIA -THE PROCESS AND GROUNDS

A. Introduction 

This edition of Akintunde Esan's Legal Illumination is focusing on how to initiate or commence a divorce process in Nigeria and the the only eight (8) legal grounds upon which a divorce is legally required to be filed in Court in Nigeria as provided in the Matrimonial Causes Act, which is the Law regulating the filing for Divorce in Nigeria.

B. Where to Get a Divorce 

The place to get a divorce in Nigeria is either in the High Court for statutory marriages or the Customary Court for customary marriages. 

The legal implication of having either a customary or a statutory marriage is that, while a statutory marriage can only be dissolved by a High Court of competent jurisdiction on the statutory grounds provided in the Matrimonial Causes Act, a customary marriage can be dissolved arbitrarily or without resorting to the Customary Court by:

i) The wife leaving the husband and the bride price being refunded; or

ii) The husband driving away the wife; or

iii) By mutual consent of the couple. 
 
The Jurisdiction of the High 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.

C. How to initiate or Commence a Divorce Process  

A divorce is initiated or commenced in any of the High Courts in Nigeria by the filing of the following documents or Court processes at the Court’s Registry:

(a)     Notice of Divorce Petition;

(b)     Sealed copy of the Divorce Petition

(c)     Certificate relating to reconciliation;

(d)     Affidavit verifying the Petition;

(e)     Acknowledgement of Service of the Petition; and

(f)     Copy of Marriage Certificate.

D. The Eight (8) Legal Grounds for filing for Divorce in Nigeria

By virtue of Section 15(1) of Matrimonial Causes Act, the High Court has the jurisdiction to make an order dissolving a statutory marriage only on the general ground that, the marriage has broken down irretrievably.

However, the High Court in coming to the conclusion whether a marriage has broken irretrievably is required to take into consideration the occurrence of one or more of the specific eight (8) grounds set out in sub-section (a) to (h) of Section 15 (2) of the Act. 
 
In divorce case between LT. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006) LPELR-7670(CA) Ariwoola, J.C.A at P. 24, paras. C-G, illuminated on the issue of ground and grounds for divorce as follows: 

"The learned counsel contended that there is only one ground for the dissolution of marriage in our law. This with respect may not be totally correct, to say the least, as there are several grounds which the Matrimonial Causes Act refer to as "facts". (See; Sections 15(2) and 16(1), Matrimonial Causes Act.  

However, in Nigeria, a Court cannot dissolve a marriage or declare a marriage to have broken down unless one of the facts listed in Section 15(2) is established by the petitioner, even though it appears the marriage has broken down irretrievably." 

Thus, an occurrence of any of the following eight grounds or situations or facts in the eyes of the Matrimonial Causes Act is a conclusive proof that, a marriage has broken down irretrievably or generally and therefore ripe for divorce or dissolution:

Ground 1: Denial of Sexual Intercourse 

This is where a spouse has willfully and persistently refused to have sexual intercourse with an aggrieved spouse. Section 15(2)(a). 

Ground 2: Adultery and Intolerable Behaviours

This where a spouse has committed adultery and the offended spouse find it intolerable to live with the offending spouse. Section 15(2)(b). 

Ground 3: Unreasonable Behaviours

This where a spouse behaves in such a way that the aggrieved spouse cannot reasonably be expected to live with such a  spouse. Section 15(2)(c).

Section 16(1) set out the behaviors that can be said to be the ones that, a person cannot be reasonably expected to live 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 willful failure to provide court ordered or agreed support for two years. 

g) Insanity and unsoundness of mind 

Ground 4: Abandoning of Spouse

Where a spouse has abandoned or deserted the other spouse for a continuous period of at least one year . 

a) The types of desertion: 

i. Simple Desertion: the guilty spouse abandons the matrimonial home. 

ii. Constructive Desertion: The spouse who is in desertion is the spouse who by his or her conduct expels the other spouse and remains at home. 

b) The elements of desertion: 

i. Physical separation or defacto separation: This implies bringing co-habitation to an end by severing marital obligations; or 

ii. Intention to remain permanently separate or animus deserendi 

iii. Absence of the spouse’s consent. 

iv. Absence of any justification: There will be no desertion if the spouse who has withdrawn from cohabitation has a good reason for doing so. 

Ground 5: Living Apart for Two (2) Years

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. 

Ground 6: Living Apart for Three (3) Years

However, where the parties to a marriage have lived apart for a continuous period of at least three years, the consent of the other party is not required before such a marriage can be dissolved. Section 15(2)(e) and (f). 

References to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household. 

Ground 7: Disobedience to Order of Restitution of Conjugal Rights 

Where a spouse for a period of not less than one year, failed to comply with a court order of restitution of conjugal rights. 

Ground 8: Spouse is missing for Seven (7) Years

Where a spouse is missing for such a 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 is alive. 

If the spouse seeking for divorce can prove the occurrence of one or more of these eight grounds mentioned above, the High Court will have no choice than to grant the prayer for divorce or dissolution of his or her statutory marriage, as this implies that, the marriage has broken down irretrievably in law. 

E. Divorce within Two Years of Marriage 

1. Section 30(1) and (2) of the Matrimonial Causes Act provides that a suit for divorce cannot be filed within two years of marriage except if the other spouse is involved in:

a) willful and persistent refusal to consummate the marriage,

b) adultery,

c) commission of rape,

d) sodomy or bestiality

2. 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.

3. 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.

F.  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 from his/her self-manufactured fault .

G.  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 parties to 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 .

H.  Claim of Joint Ownership of Property 

He who asserts must prove. Further assertion or re-assertion does not prove initial assertions. It therefore behoved 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.

I. He who comes to Equity must have his Hands Clean 

The Court held that, the appellant's conduct 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.  

J.  Decree Absolute 

A decree absolute is not and can never be pronounced by a court. It is a process maturity rather than pronouncement.

K.  Cost of getting a Divorce  

The cost of getting a divorce in Nigeria involves:

(a) Filing Fees: These are the fees to be paid for the filing of a divorce Petition in the Registry of a Court with the competent jurisdiction to hear and determine it. The filing fees are not the same in the 36 States of Nigeria and the Federal Capital Territory (Abuja).

(b) Lawyer's Professional Fees: These are the fees paid to engage a Nigerian Lawyer to prepare the necessary court processes, file them in Court and represent you in the divorce proceedings in Court. There is no fixed professional fee for divorce in Nigeria. The fees depends on the discretion of the Lawyer engaged based on his or her level of experience.

L. Conclusion

No reasonable man or woman will or would want to divorce his or her spouse, but human nature makes frictions inevitable and some frictions may degenerate or metamorphose into irreconcilable differences that make divorce not just inevitable but reasonable.

There are times when divorce is not a reasonable option considering your children, what you have mutually invested in the marriage and the signs that reconciliation is possible. However, when your marriage becomes injurious or poisonous to your children/child, health, life and destiny and it appears divorce is the only reasonable option.

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”.

Lawyers are undertakers of dead marriages, not ruling out the fact that, some dead marriages do resurrect like the dead body of Lazarus or the prophetic dry bones putting on flesh and rising again. However, marital resurrection is a miracle that happens by choice and not by chance.

If you are in a dilemma on divorce think about the finding of a study at the University of Harvard, which observed that, all the members of family suffering from a high level of conflict, for example where there is persistent abuse or alcoholism, benefit from divorce. However, those marriages with low level of conflict gain more by staying together, and the harm to the children is less than that caused by divorce.

CALL or CHAT with me if you need someone to confide in on your dilemma

You can also CALL or CHAT with me @ 08073828487 for further legal illumination on how to resolve or seek for divorce.

DIVORCE IN NIGERIA - THE PROCESS AND GROUNDS is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

NOTICE ! NOTICE !! NOTICE !!!

You also advised to try Ase Olodumare Chambers Divorce Mediation if:

• you are seeking for an amicable and peaceful separation or divorce.

• you are contemplating filing for divorce or separation in Court.

• you are having issues on child custody. 

• you are not formally married but are seeking for amicable and peaceful severance of their marital relationships.

• For more information on Ase Olodumare Chambers Divorce Mediation Initiative click on: BREAKING NEWS ! DIVORCE MEDIATION IN NIGERIA  

Also click to view:

CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

GROUNDS FOR GRANTING DIVORCE IN NIGERIA

GETTING A DIVORCE IN NIGERIA-THE CONDITIONS PRECEDENT

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.

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[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)

[4]Section 15(2)(a).

[5]Section 15(2)(b)

[6]section 15(2)

[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)

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