DIVORCE IN NIGERIA-THE PROCESS AND GROUNDS
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) Legally recognised 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:
Where a spouse has willfully and persistently refused to have sexual intercourse with an aggrieved spouse. Section 15(2)(a).
Where a spouse has committed adultery and the offended spouse find it intolerable to live with the offending spouse. Section 15(2)(b).
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.
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.
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.
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.
Where your spouse for a period of not less than one year, failed to comply with a court order of restitution of conjugal rights.
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.
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.
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.
You can call or chat with Akintunde Esan (The Legal Adviser Online) @ 08073828487 for further legal illumination on how to resolve or seek for divorce.
Written by Akintunde Esan, Managing Partner/Principal Consultant @ Ase Olodumare Chambers Law Firm, Lagos Nigeria.
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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.
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COURT DECLARES MARRIAGE CERTIFICATES ISSUED BY LOCALGOVERNMENTS IN NIGERIA AS ILLEGAL