HOW TO GET A DIVORCE IN NIGERIA.
By Orioye Ronuwo Owolebi,Esq
INTRODUCTION
Gone are the days where marriage used to be a sacred and valuable institution.
The once glorified, sacred and valuable institution has been reversed excessively with the pass of the years due to the skyrocketed divorce cases that pop up on a daily basis all over the world which is now seen as the order of the day.
Nigeria is not left out of this divorce pandemic besieging the world recently, there has been astronomical increase of divorce cases littering the courts in Nigeria with many having to question what the problem is.
From professionals, to celebrities, a host of their marriages are folding up becoming a huge concern in the country.
In a report published in 2018,a total of 3000 divorce cases were recorded in Badagry, Lagos. Also,In a 2019 report titled ‘ Deciphering the high rate of divorce in Nigeria,’ Kano state alone had over 1 million registered divorces.
In this article, we will be looking at the definition of marriage dissolution in the legal sense, the court that has jurisdiction over dissolution of marriage, the party that can bring a process for dissolution of marriage, also the article listed the grounds upon which a marriage can be dissolved within two years and finally the grounds for the dissolution of marriage that is above 2 years and the various orders the court will grant after a petition for marriage is brought before it.
WHAT IS DISSOLUTION OF MARRAIAGE?
Dissolution of marriage is a legal way of ending a marriage by a court of law.
It is otherwise known as divorce. So, when a husband and his wife agreed to end their marriage and go their separate ways, without resorting to court, it is a sham and their marriage is still intact at law.
In other words, a marriage cannot be dissolved through a couple’s agreement or through the use of alternative dispute resolution methods (ADR).
The law allows a spouse who desires to dissolve their union to file an action for divorce in any state of the federation, irrespective of where the marriage was celebrated or the couple reside, provided that the other couple consents to it. For instance, a marriage may be celebrated in Lagos state, while the couple may subsequently settle in Abuja and in the case of divorce; an action for the dissolution of marriage may be instituted in Kano state.
WHICH COURT HAS JURISDICTION OVER MARRIAGE DISSOLUTION IN Nigeria?
An action for divorce can only be filed at any state High court in Nigeria.
WHO CAN BRING AN ACTION FOR DIVORCE? CAN A PERSON BRING AN ACTION FOR DIVORCE ON BEHALF OF THE HUSBAND OR WIFE?
An action for divorce can only be filed by the either the husband or wife. This means that a father or mother-in-law does not have any justification to file for a divorce suit on behalf of their children.
CAN A PERSON GET A DIVORCE WITHIN THE FIRST TWO YEARS OF MARRIAGE?
Under the Matrimonial Causes Act in Nigeria, a husband or wife in a marriage can only request for a divorce from the courts after they have been married for at least 2 years. The reason for this is because of the desire of the courts to protect the institution of marriage.
The idea therefore is that if people could get married and then divorce so quickly after marriage, they are not showing requisite respect for the institution of marriage which is after all is a legal status and contractual agreement.
Therefore, the 2 years rule stipulates that for divorce proceedings to commence, the parties must have been married for at least 2 years.
However, there are 14 exceptions to this rule. This means a person can file for a divorce within the first two years of marriage if the person’s circumstance falls within one of the 14 exceptions which the law the law allows for. These exceptions are as follow.
1. Where the husband or wife was lawfully married to another person at the time of the marriage.
2. Where the requirement for the proper solemnization of the marriage were not followed. e.g ceremony performed by an unlicensed person.
3. Where the consent of either of the couple was obtained by duress or fraud.
4. Where there was a mistake as to the identity of the party or the nature of the ceremony performed.
5. Where one party was mentally incapable of understanding the nature of the marriage contract.
6. Where either of the parties is not of marriageable age. It should be noted that the Nigerian constitution does not establish a minimum age of marriage. The child Rights Act, which was passed in 2003, sets the age of marriage at 18 years-old. However, only 23 of Nigeria’s 36 states have adopted this act. As a result, in some areas of the country the minimum age of marriage can be as low as 12 years-old.
7. Where both parties are within what is known as prohibited degrees of consanguinity and affinity. The prohibited degrees of consanguinity and affinity refer to a list of relationship which are not allowed by law to marry. E.g brother and sister, uncle and niece etc.
8. Where at the time of marriage either party was incapable of consummating it. e.g the husband is suffering from some form of erectile dysfunction
9. Where at the time of the marriage either party is of unsound mind, a mental defective, or subject to recurrent attacks of insanity or epilepsy.
10. Where at the time of the marriage either party is suffering from a venereal disease in a communicable form. This would include all sexually transmitted disease and infections.
11. Where at the time of the marriage, the wife is impregnated by another person other than her husband.
12. Where the other person has refused to consummate the marriage.
13. Where the other party has committed adultery.
14. Where the other party has committed rape, sodomy or bestiality.
Finally, the law gives the judge discretion to be a be able to grant divorce within the first 2 years of marriage, however, the person requesting for the divorce must specifically request for ‘ leave of court’. The court will execute discretion only in circumstances where refusal to grant the leave would impose hardship on the applicant or case is one involving exceptional depravity on the part of the other party.
Granting leave is something which the court does not take lightly and so the circumstances must be one which is exceptional or else the court will just ask the parties to wait for two years to lapse.
GROUND FOR THE DISSOLUTION OF MARRIAGE
Under the Act, the sole ground for the dissolution of marriage is that the marriage has broken down irretrievably (broken down beyond repair).However, the petitioner must prove one or more of the facts below to establish the ground.
The facts are as follows;
That the respondent has willfully and persistently refused to consummate the marriage.
That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
That since the marriage the respondent has behaved in such a manner that the petitioner finds it intolerable to live with the respondent.
That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of this petition and the respondent does not object to a decree being granted.
That the parties to the marriage have live apart for a continuous period of at least 3 years immediately preceding the presentation of the petition.
That the other party to the marriage has, for a period of not less than one year failed to comply with decree or restitution of conjugal rights made under this Act.
That the other party to the marriage has been absent from the petitioner for such a time and circumstances as to provide reasonable grounds for presuming that the respondent is dead.
WHAT WILL THE COURT DO AFTER A PETITION FOR DISSOLUTION OF MARRIAGE HAS BEEN FILED BY EITHER THE HUSBAND OR WIFE
When a marriage is dissolved, the first order the court will make is called’ DECREE NISI’ which is meant to last for three months. Within these months three months, the couple against whom the other is made can change their minds and therefore, continue as husband and wife.
‘DECREE NISI’ is a temporary order. The second order occurs when ‘DECREE ABSOLUTE’ is made, it is the order that finally dissolves the marriage and it is made three months after DECREE NISI is made.
After DECREE ABSOLUTE is made, there is no right to appeal the decision of the court.
Until DECREE ABSOLUTE is made a spouse whose marriage is undergoing divorce process cannot enter into another marriage.
Also where any of the party died before the 3 months elapses, it shall not become absolute.
CONCLUSION
The matrimonial causes act in Section 11 mandates the court not to be quick to grant divorce prayers; they should try and make sure the couples try option of reconciliation. This is to happen through the active steps of the court, by setting up mediation and appointing conciliators for the reconciliation process of the couples seeking divorce to see if the partners can sort out the differences.
The law also mandates the judge to act first as a conciliator to seek for the reconciliation of the couple first. He can only step into his judicial capacity to commence hearing of the divorce petition when the mediation and conciliation for the reconciliation of the partners fails.
It is only when section 11 of the act has been fulfilled by the judge and the parties still want divorce that the judge can go ahead to hear the divorce petition.
Therefore, in Nigeria courts, before the prayer for divorce can be granted by the judge, the couple(s) must prove and it must be ‘’ manifestly be seen’’ that the marriage has broken down irretrievably(beyond repair),this means that the partners and even the court have tried everything to make the marriage work but it’s clearly not working and the partners going their separate ways is the best option at the time being.
REFERENCES
1. https://www.blueprint.ng/4000-divorce-cases-in-2-months-which-way-family-values/ (accessed on the 8th of March 2023)
2. Kehinde Adegbite, LEARNING THE LAW IN NIGERIA(1ST Ediction,9, Ezekiel Street,Off Toyin Street,Ikeja,Lagos,Princeton & Assaociates Publishing Co.Ltd,2015,p 96
3. Section 15(1) of the Matrimonial Causes Act.
4. Section 15(2) of the Matrimonial Causes Act.