Law And Divorce In Nigeria: An Examination Of The Grounds For Divorce In Statutory Marriages, Jurisdiction Of Court, Ancillary Matters And Alternatives

By Oliver Azi

The “Matrimonial Causes Act 1970” (which would herein be referred to as “MCA”) sets the framework for marriage and matrimonial causes under Nigerian law. For the purpose of this work, the marriage under the act is also called “Statutory Marriage”.  Also, the “petitioner” is the person who institutes the legal action or drags the partner to court while the “respondent” is the partner being dragged to court. The proceedings for dissolution of marriage are usually instituted by way of a Petition.

The provision of s. 11 of the MCA will set the ground running for this work, The section states that the court should not be quick to grant divorce prayers and should try to make couples try the option of reconciliation. However, where this is not achievable, a divorce proceeding can be instituted.

Dissolution of Marriage

To dissolve a marriage Section 15(b) of the MCA stipulates the meaning of “irretrievable breakdown of marriage,” which is the only condition upon which a marriage can be dissolved. To explain more on what “irretrievable breakdown of marriage” means, the law spells out some grounds, which include:

1. The respondent willingly refused to consummate the marriage.
2. After the marriage, the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent.
3. That the respondent has behaved in a way that the petitioner can’t be reasonably expect to live with the respondent
4. That the respondent has deserted the petitioner for a constant period of at least one year preceding the petition.
5. The parties have lived apart for a minimum of 2 years preceding the respondent, and the petition doesn’t object to a decree of dissolution being granted
6. That the parties to the marriage have lived apart for a continuous period of at least three years preceding the presentation of the petition.
7. The other party to the marriage for a period of not less than one year failed to comply with a decree of restitution from conjugal rights made under that Act.
8. That the other party to the marriage has been absent from the petitioner for such a time and in circumstances that are such, the petitioner has to provide good grounds for presuming that he or perhaps she’s dead (seven years).

Hence, if any of the above-listed conditions are not the reason for instituting a divorce proceeding, then the court would not grant the divorce petition.

• THE TWO YEARS RULE IN DIVORCE PROCEEDINGS

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, Section 30 (1) of the Act states that:

“Subject to this section, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by the leave of court.”

However, the leave is not automatic, as the petitioner must establish exceptional hardship and exceptional depravity on his/her part as provided for in Section 30(3) of the MCA.

• JURISDICTION OF COURT

Although it is true by the provision of Section 2(1) of the MCA that only the high court of a state can entertain matters that deal with the dissolution of marriage,. However, a crucial question that often arises during marital proceeding is: whether the court to take up such matter is the court within the locality where the couple got married or the court where the couple resides?

It is true to know that the court in UGO v. UGO (2008) 5 NWLR (Pt. 1079) 1 provided and cleared up this legal confusion when it posed that:

The basis of jurisdiction of court in Matrimonial causes under the Matrimonial causes Act, 1970 is domicile. The issue of domicile of the petitioner forms the foundation or pivot of adjudication in the petition. The jurisdiction of court to hear a Divorce petition is governed by the domicile of the husband and not by his residence. By operation of law, a married woman on marriage takes on the domicile of her husband.. 

From here, two truths can be obtained: a woman takes on the domicile of her husband when marriage is done and the state high court with jurisdiction is the court where both the husband and wife are domiciled.

• JUDICIAL SEPARATION

In the event that the court does not grant divorce, other alternatives, like judicial separation, can be granted by the court. The primary distinction between a judicial separation and divorce is that, even though there is no longer any obligation for the couple to live together or any legal rights (such as conjugal rights), neither spouse may remarry in a judicial separation, which is unlike a divorce where parties can remarry.

While the word “separation” in this context may suggest the dissolution of the marriage, legally speaking, it only describes a circumstance in which the couple stops living together. The provision of s. 41 and 42 of the MCA, as well as the case of EMMANUEL V. FUNKE (2017) LPELR-43251 (CA), highlight that while a judicial separation decree is in effect, it releases the parties from their cohabitation obligations; all other rights, responsibilities, and obligations are still in place.

The following are among the duties that are unaffected by a formal separation:

1. Neither party can remarry while the decree subsists
2. The marriage is still intact
3. The welfare, maintenance and education of the children of the marriage must be catered for.
4. Either party may institute an action against the other in contract or tort.
5. Where either party dies intestate (without a will), the property of the deceased shall devolve to the surviving party.
6. Where the husband is ordered by the decree to pay maintenance to the wife and defaults, he shall be held liable for necessaries supplied for the wife’s use.

So therefore, in the event that divorce is not granted, parties may seek judicial separation. This is in a bid to salvage the marriage, which might not have broken down irretrievably. In retrospect, the grounds for divorce and other matters as provided in this work is strictly construed to statutory marriage. The grounds vary and the mode of getting a divorce differs in customary and sharia marriage.

Legal Researcher and writer Oliver Azi is a law graduate from the University of Jos and can be reached via email at: oliverazi20@gmail.com, LinkedIn at: www.linkedin.com/in/oliver-azi-76b323182 or simply Oliver Azi

Source: @ TheNigeriaLawyer