Conditions for Divorce in Nigeria

DIVORCE

Divorce simply means the legal dissolution of a marriage by a court or other competent body while dissolution of marriage is a formal, legal ending of a marriage or marital union by a Court of law.  This dissolution by court a court is when it is a statutory marriage ie marriage under the Act popularly known as “Court Marriage”. Then the dissolution by a competent body comes into play when it is a customary marriage. The return of the bride price marks the end of a marriage and the kinsmen (umunna) pronounces the marriage as dissolved.

It is trite that for a marriage to undergo divorce proceedings in Court, such marriage must be a statutory marriage legally conducted and evidenced by a valid Marriage Certificate. A statutory marriage is one governed by the Matrimonial Causes Act and includes marriages conducted in a licensed place of worship, a registrar’s office and marriage under special license.

The Act confers jurisdiction on the State High Court to determine the petition for dissolution of marriage.

GROUNDS FOR THE DISSOLUTION OF MARRIAGE

Under the Act, the sole ground for the dissolution of marriage is that the marriage has broken down irretrievably. However, the petitioner must prove one or more of the facts below to establish the ground.

The facts are as follows:

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 manner that the Petitioner cannot  reasonably be expected to live with the Respondent;
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 apart for a continuous period of at least 2 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 continuous period of at least 3 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 a time and in such circumstances as to provide reasonable grounds for presuming that the Respondent is dead. The law under the Evidence Act Provides that the person must have been missing for a period of 7 years to be presumed dead.

When  any of the above reasons have been successfully proved by the Petitioner, the Court can make an order for a decree nisi, which is often contained in the judgment of the Court. The order automatically becomes absolute within a period of 3 months in the absence of any appeal from the affected party. Thus, after the decree nisi has become absolute, there is no right to appeal the decision of the Court. More so, where any of the parties died before the 3 months elapses, it shall not become absolute. You must not prove all the 8 conditions prescribed by the Matrimonial Causes Act above to win your case. Just one or two conditions proved is enough to ground divorce

Therefore, the marriage is completely dissolved where a decree absolute is made by the Court. The effect of dissolving a statutory marriage is that a party to the marriage can marry again as if the marriage had been resolved by death.

It must be emphasized that a petition for dissolution of marriage will not succeed if the petitioner has condoned any of the above facts.

INSTITUTING PROCEEDINGS FOR DISSOLUTION OF MARRIAGE

It is worth mentioning that the petition for the dissolution of marriage cannot be brought where the marriage is under 2 (two) years unless the leave of the Court is sought. However, the leave is not automatic as the petitioner must establish exceptional hardship and exceptional depravity on his/her part.

Despite the 2 (two) years rule exception, there are instances where the rule would not apply. They include:

1. Willful and persistent refusal to consummate the marriage;
2. Adultery since the marriage and intolerability on the part of the Petitioner; and
3. Commission of rape, sodomy or bestiality.

There has been increased rate of domestic violence in our society. The best option to take if you find yourself in an abusive marriage is to take a bow and file for divorce. To be forewarned is to be forearmed.

If you need help or more clarification on this please call:

08035492685