Should Physical Assault Or Abuse Be A Ground For Divorce?

By Stanley Maduabuchi Ofoegbu Esq

The original plan of God for instituting marriage was for it to last the test of time and for the life time of couples till death. However, it does appear that do to the nature of a man, the original plan of God with respect to marriage is being distorted. However, while the original plan of God with respect to marriage is not the center of discourse, the question or issue for determination here is whether physical assault or abuse should be a ground for dissolution of marriage under the Matrimonial Causes Act.

Physical assault or abuse between married couples can take the form of assault occasioning harm, serious assault, grievous bodily harm as contained in Section 355, 356 and 335 of the Criminal code cap C38 Laws of the Federation. It involves the use of physical power by either of the couple to attack and inflict bodily harm on the other person with or without the intention to kill such a person. In the law of tort, it includes battery.

The law is trite that the express mentioning of items means the exclusion of other items not mentioned as encapsulated in the latin maxim thus, expression unius est exclusion alterius.

The grounds upon which a marriage validly contracted can be said to have broken down irretrievably and liable to be dissolved by the court are clearly captured in Section 15 of the Matrimonial Causes Act to include the fact that:

1. That the respondent has willfully and persistently refused to consummate the marriage
2. That since the marriage, the respondent has committed adultery and the petitioner find it intolerable to live with the respondent
3. That since the marriage, the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition
4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition
5. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.
6. That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition
7. That the other party to the marriage has for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under the Act
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstance as to provide reasonable grounds for presuming that he or she is dead.

A careful look at the above shows clearly that physical assault is not listed as a ground for the dissolution of marriage under the matrimonial causes Act. However, a possible argument does appear in paragraph  C of section 15 (2) of the Matrimonial Causes Act which provides for a ground of dissolution where any of the parties to a marriage behaves in such a way that the other party cannot reasonably be expected to live with. But then, a counter argument does exist in section 16 of the Act which is a supplementary provision to Section 15. The said Section 16 (1) of the Act itemizes acts that constitutes intolerable conduct which the law recognizes and does not include physical assault or bully even though it has been held that the said acts as contained in Section 16 (1) are not exhaustive. This however, is arguable in line with the principle of construction wherein an express mentioning of items means those not mentioned are excluded.

What then is or are the status of couple (s) seeking for divorce on the ground of physical abuse or bully?

Will they remain in marriage and suffer even to the point of death since the Act does not itemize physical assault as a ground for divorce?

No doubt, couples who are married under the Act may be entitled to other judicial remedies capable of protecting their marriage as against the remedy of divorce. However, can the remedy of divorce be granted or achieved if the only ground is the ground of physical abuse or bully?

Before addressing the above issue, it is worthy to note that whether married or unmarried, a person who willfully causes or inflicts physical injury on another person by means of any weapon, substance or object, commits an offence and is liable on conviction to a term of imprisonment not exceeding 5 years or a fine not exceeding N100,000 OR both. This is contained in Section 2 (1) of the Violence against persons prohibition Act 2015.

Similarly, Section 19(1) of the Violence against persons prohibition Act 2015, provides in clear terms:

“A person who batters his wife or her spouse commits an offence and is liable on conviction to a term of imprisonment not exceeding 3 years or to a fine not exceeding N200,000 or both”

Juxtaposing the provision above with Section 15(2) paragraph c of the Matrimonial Causes Act will further push forward the argument that physical assault and battery among spouse should necessarily be a ground for dissolution of a marriage under the Act since same is an act capable of taking the offender to prison.

But since the Matrimonial Causes Act is silence on the issue of physical assault and battery, what is the fate of a spouse who is constantly being battered by his or her partner?

A spouse who is suffering from physical abuse and battery, can conveniently apply for a dissolution of marriage under the matrimonial causes Act on the account of physical abuse and battery provided the affected spouse being the petitioner is able to prove that the attitude of the other partner is or has become intolerable to deal or live with because the life of the petitioner is now at risk.  In other words, the petitioner must be able to prove to the court that his or her life is now being endangered due to physical attacks or battery from the spouse.

On that note, the court is now faced with placing the life of the petitioner who has proved a threat to life being a violation of fundamental human rights and the marriage side by side.

In summary, while I advocate for the amendment of the Matrimonial Causes Act especially as it concerns grounds for the dissolution of Marriage, parties who are in an abusive relationship should as a matter of urgency speak up irrespective of religious beliefs. Parties must understand that there is no marriage in death.

The writer Stanley Maduabuchi Ofoegbu Esq is a family law expert and a private legal practitioner.

Source @thenigerialawyer