A divorce proceeding is a legal process to formally terminate a marriage. Divorce proceeding is usually commenced by way of petition filed against the respondent before the court of competent jurisdiction. In divorce proceedings, there are reliefs that can be granted by the court to either the petitioner or the respondent, depending on the facts of their case. This article focuses on the remedies that are principally available to the petitioner, even though, some of these reliefs may also be grantable to the respondent in deserving cases.
1. Injunction: An injunction is an equitable remedy granted by the court to compel a party to do or to refrain from doing an act. A court can grant an interim injunction (for limited number of days without hearing the other party) or interlocutory injunction as a temporary order during the course of litigation to compel a party to do or refrain from doing certain acts before the conclusion of the case or perpetual injunction which is usually granted after hearing the case on the merits. For instance, a party in divorce proceedings can apply to the court for an injunction for the maintenance of the issues (upkeep of the children) in the marriage even before the conclusion of the case or to restrain the other spouse from continuing the act which has led to the divorce proceedings e.g. spousal violence or domestic violence. Generally, in an application for an interim injunction, the applicant is required to give an undertaking as to damages that may be sustained by the respondent as a result of a frivolous injunction. However, as decided in a matrimonial case of Hayes v. Hayes (2000) 3 NWLR (Pt. 648) 276 failure to give an undertaking as to damages does not nullify the application for injunction.
2. Dissolution of marriage: This is an important remedy that is available to a petitioner in divorce proceedings. The aim of a petitioner in divorce proceedings is to legally bring the marriage with the respondent to an end. To accomplish that, the petitioner has to establish the reasons why he or she desires an end to the marriage. And such reason must fall under the grounds established in Section 15(2) of the Matrimonial Causes Act. The petitioner must prove one or more of the statutory grounds in order to be granted the relief of dissolution. See Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 CA 25. Please note that a decree of dissolution can either be granted or refused by the court. Please note also that there are certain bars or defences to an order or decree of dissolution of marriage which, if established, the court will refuse to grant a decree of dissolution. These bars or defences will be discussed below, namely: Condonation or Connivance.
(a) Condonation and Connivance: A decree of dissolution will be refused where the petitioner has taken certain steps in connivance of the breach complained against. Condonation or connivance is a conditional remission or forgiveness by means of continuance or resumption of marital cohabitation by one of the parties of a known matrimonial offence (committed by the other) that would have constituted a ground of divorce. Once condonation or connivance is raised as a defence by the respondent and established by convincing evidence, the court will refuse to grant for an order of dissolution of marriage. The court will not allow a petitioner who has condoned the respondent’s wrongful act to then turn around and use the same act as a ground for a prayer of nullity of the marriage or dissolution as the case may be. See Tongo v. Tongo LPELR 2020 CA.
(b) Collusion: This is an act of conspiracy between two persons for fraudulent or deceitful purpose. See M.O. Kanu, Sons & Co Ltd v. Nzeribe (2014) LPELR 2839 CA. It can also be said to be a situation where the spouses have agreed to commit a fraud on the court. Where the court is satisfied that the parties to the suit conspired to deceive or commit a fraud by deceiving the court into granting the relief of dissolution of marriage, the court will refuse such prayer. For instance, where an arranged marriage was made between the parties for a specific goal (e.g. overseas travel or citizenship purposes, etc.) and after the goal must have been achieved by both parties, they then proceed to dissolve the “supposed marriage”, the court being aware of this collusion will not grant a relief of the dissolution of the marriage. See section 27 of MCA.
3. Custody of the Child of the Marriage: Custody is also a remedy that is available to a petitioner or respondent in divorce proceedings. Custody in family law means the care, control, and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision making authority) and physical custody (care giving authority), and an award of custody usually grants both rights. This relief determines who is entitled to the legal or physical custody of a child as decided in Nwosu v. Nwosu (2011) LPELR- 8664 CA. In the determination of the custody of the child(ren) of the marriage which also entails the determination of the guardianship, welfare, advancement or education of the children of a marriage, the court gives regard to the interests of those children as the paramount consideration. It is on such basis that the court makes its order as to the custody of the issues of the marriage. See Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 CA 35-36. It should be emphasized that throughout the gamut of matrimonial proceedings, the interest of the child of the marriage, as to his custody and welfare, is held in paramount. See Anyaso v. Anyaso (1998) 9 NWLR (Pt. 564) 150, and Oyelowo v. Oyelowo (1987) 2 NWLR (Pt. 56) 239. Such is this paramountcy that it has been held by the court that a decree shall not be made absolute until the court is satisfied a to the arrangements made for the care and upbringing of the child of the marriage; and a decree absolute made on an inadvertent or non-compliance with the custody and maintenance of the child shall be declared void.
4. Maintenance: A petitioner in divorce proceedings can seek a relief of maintenance for himself or herself and also for their child or children of the marriage pending the finality of the divorce proceedings. In assessing the maintenance to which the wife and the children in a marriage are entitled, the court will have regard to what is fair and equitable based on the evidence adduced by the parties at the trial. The court will also consider the economic trends and the standard of life which the parties to the marriage previously maintained before the proceedings in which the order of maintenance is sought. See Nanna v. Nanna (supra). Please note that maintenance may be granted to a spouse (even in the cases of adultery or other misconducts) if the court deems it necessary in the interest of the child in the custody of the spouse.
The court can therefore in exercising its power under the Nigerian law do all or any of the following: (a) order that a lump sum or a weekly, monthly, yearly or other periodic sum be paid immediately, or (b) order that a lump sum or weekly, monthly, yearly or other periodic sum be secured.
The sum to be awarded for maintenance of a party to a matrimonial proceeding or the child of the marriage shall be determined by, among other facts:
(a) the stations in life of the parties and their lifestyles;
(b) their respective means of income;
(c) the existence or non-existence of child or children of the marriage; and
(d) the conduct of the parties. Se Hayes v. Hayes (supra).
5. Damages: This is the amount of money claimed by (or ordered to be paid to) a person to a court case as compensation for loss or injury. A petitioner in divorce proceedings can also seek damages as part of his or her reliefs. For instance, in the case where the petitioner was deserted by the respondent for a continuous period of at least one (1) year, pursuant to section 15(2)(d) of MCA, the petitioner can seek a relief of damages as compensation for the troubles he or she passed through by reason of the desertion. A petitioner seeking dissolution on the ground that the respondent committed adultery can also seek damages as a compensation. However, the court in the case of Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) CA stated that damages on grounds of adultery are not compensatory for the loss which the petitioner has suffered, and consideration may be given to such matters as damage done to the husband by the blow to his honor, the hurt to his family life and injury to his feelings. Please note that in Hayes v. Hayes (supra), the Court of Appeal held that even where the plaintiff fails in his or her action, the trial court must still assess the damages due to the plaintiff so that if the plaintiff eventually succeeds on appeal, there will be no difficulty in settling the necessary monetary figures of award and by so doing it would obviate the necessity of sending the case back for such assessment.
6. Nullity of marriage: The term “nullity of marriage” refers to the legal declaration that a marriage is void or invalid from its inception. In other words, a marriage that is declared null and void is considered to have never existed in the eyes of the law. A petitioner in divorce proceedings also has the above relief available to himself or herself, as the case may be. A petitioner praying the court to declare a marriage null and void based on the grounds set out in section 3(1) of the MCA must strictly prove that the marriage was indeed celebrated. See Ijioma v. Ijioma (2009) 12 NWLR (Pt. 1156) 612. A marriage may be declared null and void in favor of the petitioner seeking the relief if the court is satisfied, amongst others, that:
(a) the respondent at the time of the marriage, was lawfully married to another person;
(b) the court is satisfied that the parties are within the prohibited degree of consanguinity or affinity;
(c) the court is satisfied that the consent of the petitioner to the marriage is not real because it was obtained by duress or fraud; or
(d) the court is satisfied that the petitioner was mistaken as to the identity of the respondent at the time the marriage was celebrated. As mentioned somewhere above, where the petitioner has condoned the lawful marriage entered into by the respondent during the continuance of the subsisting marriage, the petitioner having condoned the act cannot on that basis seek a decree of nullity of the marriage on that ground. See Etebu v. Etebu (2018) LPELR -46250 CA.
