A. Introduction

Divorce is the legal dissolution of a marriage. 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 filing and processing of a divorce in Nigeria.

The Matrimonial Causes Act

Prior to the year 1970, the statute regulating the requirements, conditions and grounds for divorce in Nigeria was the English Matrimonial Law known as the Marriage Ordinance or Old Marriage Act, which became applicable in Nigeria by virtue of Lagos becoming a colony of the British Crown in 1861.

The Marriage Ordinance being an English Law was unable to take care of the Nigerian indigenous matrimonial needs. The necessity for an indigenous matrimonial statute paved the way for the enactment of Matrimonial Causes Act on the 17th March 1970.

C. Customary Marriage or Statutory 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 .

D. 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.

E. Jurisdiction of the High Court to hear a Divorce Petition

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.

F. Determination of Domicile of the Husband

The husband's domicile generally speaking means the place where he has his permanent home and whether he goes east 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 who asserts that the domicile of origin is lost - the intention must be proved with perfect clearness[6].

G. How to initiate or start 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) a sealed copy of the Petition in these proceedings;

(b) a Notice of Petition;

(c) a Certificate relating to reconciliation; and

(d) an Affidavit verifying the Petition .

(e) An Acknowledgement of Service of Petition

(f) a copy of Marriage Certificate

H. 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 of 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

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

Ground 2

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

Where a spouse has behaved in such a way that the aggrieved spouse cannot reasonably be expected to live with the offending 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

Where a spouse has 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

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

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. Section 15(2)(e) and (f).

a) 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

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

Ground 8

Where your 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.

I. 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.

J. 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 .

K. 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 .

L. 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.

M. 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.

N. Decree Absolute

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

O. 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.

P. Conclusion

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 me if you need someone to confide in on your dilemma

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

ENDNOTES:
[1] Amobi v. Nzegwu & Ors (2013) LPELR-21863 (SC), P.61,paras. E-F.

[2] 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)

[3] See Okon v. Okon (2016)LPELR-42056(CA)Per SAULAWA, J.C.A. (Pp. 12-13, Paras. F-C) on the importance of filing a verifying affidavit and the effect of the failure to file it.

[4] Service Omopariola Okojie vs. Michael Abodele Oko unreported Suit No. WD/21/7 Lagos High Court, delivered on 10th March 1976; Mohammed Damulak vs. Lesley Patricia Damulak (2004) 8 NWLR (pt 874) 151 at166; Per Ariwoola, J.C.A (P. 24, paras. C-G) LT. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim(2006) LPELR-7670(CA)

[5] It should be noted that, where the offended spouse alleges that the offending spouse has behaved in such a way that the offended spouse cannot reasonably be expected to live with offending spouse but the couple have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the offended spouse and held by the court to support the allegation of offended spouse, that fact shall be disregarded in determining for the purposes of section 15(2)(c) whether the offended spouse cannot reasonably be expected to live with the offending spouse if the length of that period or of those periods together was six months or less See Section 17 (1) of the Act.

[6] In considering for the purposes of section 15(2) of the Act whether the period for which a spouse has deserted the other spouse or the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion or of the period for which the parties to the marriage lived apart, as the case may be.

[7] Enwezorv Enwezor & Anor(2012) LPELR-8544(CA)

[8] 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)

[9] Enwezorv Enwezor & Anor(supra)

[10] Enwezor v Enwezor & Anor(supra)

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