- The 8 Major Reasons Revealed!
Have you ever wondered what the grounds for getting a divorce are? Were you married at the Registry or a registered place of worship in Nigeria? Well sit tight, I am about to gist us on how to divorce under the English Law.
For the last three weeks or so, we have been discussing divorce under Customary Law, if you haven’t read those, here is a link to do so ” http://www.citypeopleonline. com/get-divorce-customary-law/” or you could simply look for past editions of City People in order to get that info.
Marriage is considered a sacred institution all around the world, in Nigeria marriage holds a special place, it is for this reason that the courts have set up a sort of check and balance to ensure that dissolution or divorce is not abused or taken for granted.
Under the Nigerian Legal System, there is only ONE ground for seeking and being granted a divorce. For you to be able to get a divorce, you must prove to the Court that your marriage is at least two years and has broken down irretrievably
In a nutshell and as a general rule, a marriage under two years cannot come before a Court with a petition for divorce. Under the Matrimonial Causes Act (This is the statute responsible for rules and regulations of Marriage and Divorce) a person who presents the petition for divorce is called the Petitioner, while the other party is called the Respondent. And what is brought before the Court is called a “Petition”.
The only Court with jurisdiction for any of the above proceedings is the High Court of any state in the Federal Republic of Nigeria. And the petitioner must be domiciled in Nigeria before the court can have jurisdiction to hear the divorce petition.
Like I said earlier, the petition for divorce must be based on the SOLE ground that the marriage has been broken down irretrievably.
What does “broken down irretrievably” mean? To answer this question, the Court will consider Section 15(2) of the Matrimonial Causes Act (MCA) which lists the 8 different instances of a marriage that has broken down irretrievably as listed below:
(1) No Sex i.e. no consummation of the marriage. This simply means that since the day the spouses have been joined as man and wife, one of them has knowingly and intentionally denied or refused the other party’s sex.
(2) Adultery: One of the parties to the marriage has committed Adultery and the other party cannot bear or tolerate living with the party who committed the adultery.
(3) One of the spouses has conducted him or herself unreasonably Under this head we have unreasonable conduct of rape, bestiality, habitual drunkard, sodomy, murderer, incarcerated (in prison), attempted murder of a spouse, intent to or actual commission of serious bodily injury, inability to take care of spouse.
(4) Abandonment- i.e. one of the spouses abandoned the other for a period of at least one year (To succeed under this head, the conduct must have been done at least one year prior to the filing of the divorce petition).
(5) Separation (This means the couple have been living apart for a continued period of two years prior to the filing of the divorce petition) and the respondent has no objection to the divorce being granted.
(6) Separation (living apart for a continued period of three years prior to the filing of the divorce petition). Please note that living apart as contemplated by the Act does not mean physically living apart. For divorce to succeed under this ground, the parties to the marriage must have shown by their conduct and evidence that there is indeed trouble in paradise and they are unwilling to resolve the said trouble.
(7) Failure to comply with a court order regarding marriage or the sexual rights or privilege of a marriage.
(8) Death/Reason to Believe that the Spouse is Dead.
To be clear, the Court will only grant the petition if and only if the Court is satisfied that the Petitioner has established at least one or more of the above facts
Where the marriage is below two years, (this is called the two-year rule), the Court will not entertain a divorce petition, the rationale behind this is to give the newlyweds a chance to settle down and live together.
However, if a couple insists on getting a divorce, they must seek the leave (this is legal speak for permission) of the Court to present such a petition.
Also, a Divorce Petition can be allowed in a marriage under two years if the Court is satisfied that the Petitioner will suffer exceptional hardship and (ii) that he is suffering or will suffer exceptional depravity from the other party if the divorce is not granted.
The Leave of Court as explained above will not be necessary in marriages that fail the two year rule in the following cases as listed in Section 15(2)(a), (b) and (c) of the MCA
(a) When there is a willful and persistent refusal to consummate the marriage. Sex is apparently very important in a Marriage;
(b) The respondent has committed adultery and it is intolerable to the Petitioner to continue to live with the respondent;
(c) The respondent has committed rape, sodomy, bestiality and other unnatural acts; and
(d) Where the institution of the proceedings is by way of cross-petition.
Even where particulars are placed before the Court, the Court may still refuse to grant a divorce unless the Judge is sure parties have exhausted all forms of reconciliation, mediation and dialogue. The Court will attempt to save the the marriage especially if there are children involved.
It is only after alternative dispute resolutions are exhausted and no settlement is reached, that the court will dissolve the marriage on the ground that it has broken down irretrievably.
Therefore, dissolution of marriage is not automatic even when there is an agreement by the parties to go their separate ways. The Court is not under obligations to grant every decree of dissolution of marriage. As a general rule the court is usually adamant and ensures that the parties to the marriage tries to settle their differences.
In fact, it is mandatory to go for counselling before presenting the Petition, a copy of notes taken during this mandatory counseling/mediation must be attached to the petition. Therefore, mere agreement of parties to go their separate ways may not suffice as a ground for dissolution of marriage.
It is not enough that parties want to go separate ways, they must establish the conditions stipulated above.
There are instances where parties to a marriage who are simply tired of each other makes an arrangement to go their separate ways without proving any the facts stated In S. 15 (2) to buttress that the marriage has broken down irretrievably. In this instance, the court can refuse the decree of dissolution of marriage.
Dosunmu J., learned Justice of the Court of Appeal said in Williams v. Williams (Unreported) that” it is true that the new Matrimonial Causes Decree introduces some radical changes in the law of Divorce, but still, a party must come within the four walls (of the old law) before he will succeed. It is not sufficient for him or her to say, my marriage has irretrievably broken down, and I can no longer live with my partner”.
The facts of a marriage that has broken down irretrievably must be proved in Court with evidence that is incontrovertible and the court must be satisfied that the marriage has broken down completely and irretrievably.
Please note our Courts are not concerned with whose fault it is that the marriage is dead. In order to get a divorce petition successfully, the petitioner must show facts and circumstances surrounding the breakdown of the marriage, and that going by those facts and circumstances, the parties cannot reasonably be expected to live together again and make a success of their marriage.
Where a Petitioner brings a petition and the respondent disagrees with the grounds under which the petition is brought, He or she may decide to cross petition. i.e. A brings a divorce petition against B her Husband using facts as we listed above, B the Husband disagrees with the facts as presented by A. B can cross petition listing his own facts.
In that wise B will be Respondent/Cross Petitioner while A will now be Petitioner/Cross Respondent. Both matters will be heard almost simultaneously
In conclusion, once the court is able to establish the ground of irretrievable breakdown through proof of any of the “facts” as listed above and backed by sections 15(2) and 16(1) of the MCA, it has little option but to dissolve the marriage.
Please note the following
(a) Separation and Divorce are not the same thing, they are two different reliefs. Both can, however, be granted by the court;
(b) As a general rule, the domicile (treat a specified country as a permanent home) of wife follows that of the husband. Upon marriage, the wife takes the domicile of her husband. If the husband changes his domicile, the wife’s domicile automatically changes. Hence, before a wife can bring matrimonial proceedings in Nigeria, she must be domiciled in Nigeria, that is, her husband must be domiciled in Nigeria.
(c) On point above, the legislature in order to avoid potential injustice to a deserted wife in Nigeria whose husband may have changed his domicile, a special domicile was created for the purposes of matrimonial proceedings before the Nigerian court for such wife – See Section 7(a) &(b) MCA. So, if the wife was domiciled in Nigeria either immediately before her marriage or immediately before the desertion, she will be deemed domiciled in Nigeria
Also, where she has been resident in Nigeria for at least 3 years before beginning the matrimonial proceeding, she will be deemed to be domiciled in Nigeria at the date of instituting the proceeding. Please note that special domicile was created only for the purpose of matrimonial proceedings.
(d) When the court finally grants the divorce petition, the order it gives is called “Decree Nisi” this is an interim order given just in case, the Parties change their mind. After three Months, the Decree Nisi becomes a Decree Absolute and the Parties cease to be Man and Wife and if they want to reconcile, they must remarry.
We have come to the end of how to get a Divorce under the Nigerian Law. Kindly send questions and comments via email only to ty.salihu@gmail.com.
Thank you for reading….I remain yours truly
Omotoyosi Bibire Salihu, your Legal Story Teller.
How To Get A Divorce Under Customary Law>>> http://www.citypeopleonline. com/get-divorce-customary-law/
Salihu,Omotoyosi Sekinat
Deputy Managing Director/PA Legal
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