Introduction
Divorce is a legal means of bringing a statutory marriage to an end through the court system. Whenever an aggrieved spouse is contemplating a separation, it is better to speak to a family lawyer for proper guidance on the best way to go.
It is important to mention that for a marriage to undergo divorce proceedings in Court, such marriage must be one of those governed by Matrimonial Causes Act, such as marriages conducted in a licensed place of worship, a registrar’s office and marriage under special license and evidenced by a valid Marriage Certificate.
Here we have attempted to answer some questions which we have had cause to answer in advising clients and reviewing the Nigerian laws on divorce in particular and matrimonial matters generally.
What are the laws regulating statutory marriage in Nigeria?
i. The Marriage Act;
ii. Matrimonial Causes Act Cap M7, Laws of the Federation of Nigeria, 2004; and
iii. Matrimonial Causes Rules made pursuant to the Matrimonial Causes Act.
Which Court has the power to dissolve a marriage in Nigeria?
Any High Court of any State of the Federation and the Federal Capital Territory, Abuja has jurisdiction to determine a petition for dissolution of marriage.
Also, for a Court to have jurisdiction in respect of Petition for dissolution of marriage, either of the party must be domiciled in Nigeria (not overseas). Nigeria is considered as a single federation unit for the purpose of domicile. Therefore, a person who is domiciled in any state of the Federation is considered domiciled in Nigeria and can bring a petition for divorce in any State of Nigeria irrespective of whether he/she is domiciled in that State or another State.
From our experience, divorce proceedings are usually filed and more quickly concluded in other States like Ogun State or Oyo State than in Lagos State because of the latter’s congestion of its court system which invariably leads to prolongation of divorce proceedings.
Please note that the court is empowered to transfer a divorce case filed in a State High Court to any other State High Court in the Federation based on the rule of “forum convenience”, especially if it is in the interests of justice that the case be dealt with in the other State or where there is no objection from the other party, as was in the case of Ibru-Stankov v. Stankov (2016) LPELR-40981.
How does the Court apply the concept of domicile in relation to divorce?
As already mentioned above, domicile is the most important factor in determining jurisdiction in divorce proceedings in Nigeria.
There is domicile of origin and domicile of choice. Residence is not domicile. That is, a person can be resident in Nigeria without being domiciled in it, no matter how long the residence, if there is no intention to make Nigeria a permanent abode. The relevant element in determining domicile is the intention of the person. What will amount as intention to select a place as domicile is a matter of facts for the judge to determine.
The court held in the case of Bhojwani v Bhojwani (1995) 7 NWLR (Pt.407) 349 at 364-365, that a petitioner,who was born in Singapore but had lived in Nigeria since 1979 and had been doing business in Nigeria, was not domiciled in Nigeria but in Singapore. The court decided the point on the basis that the petitioner had sworn an affidavit in the UK stating that his domicile was Singapore.
Also, in the case of Ugo v Ugo (2008) 5 NWLR (Pt.1079) 1, the court held that parties who had acquired US citizenship and married in the US had acquired the US as their domicile of choice. This put their domicile of origin in abeyance, therefore they could not start divorce proceedings in Nigeria.
What are the grounds for divorce in Nigeria?
The principal ground for filing for divorce is irretrievable break down of a marriage. In order to prove that a marriage has broken down irretrievably, the petitioner must satisfy the conditions of Section 15(2) (a) – (h) of the Matrimonial Causes Act.
Under Section 15 (2) (a) – (h) of the Matrimonial Causes Act, the petitioner must prove at least one of the facts below before the court can grant a Petition for divorce.
(a). That the respondent has wilfully and persistently refused to consummate the marriage. Consummation is the technical expression for sexual intercourse between newly wedded couple. Refusal to consummate is a ground to file for divorce.
(b.) That since the marriage, the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. Any piece of evidence to prove adultery will be helpful but the person with whom adultery was committed must be identifiable.
(c.) That since the marriage the Respondent has behaved in such a manner that the Petitioner cannot reasonably be expected to live with the Respondent. Intolerability is a valid ground for divorce and what is intolerable is a question of facts, varying from marriage to marriage. Violence, adultery, drunkenness, strange or reckless behaviours, failure to provide financial support, etc. are few instances of intolerable conducts.
(d.) That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition without the approval of the Petitioner.
(e.) That the parties to the marriage have lived apart for a continuous period of at least two (2) years immediately preceding the presentation of the petition and the Respondent does not object to a decree for dissolution being granted by the court.
(f.) That the parties to the marriage have lived apart for a continuous period of at least three (3) years immediately preceding the presentation of the petition. This is a strong reason to divorce a marriage and, once proved, the court has no other choice but to dissolve the marriage.
(g.) That the other party to the marriage has, for a period of not less than one (1) year failed to comply with a decree of restitution of conjugal rights made under this Act.
(h.) That the other party to the marriage has been absent from the Petitioner for such a time and in such circumstances as to provide reasonable grounds for presuming that the Respondent is dead. Before the court will accept the presumption of death, the person must have been absent for up to seven (7) years and those who reasonably should have heard from him or her have not done so.
Upon the proof of any or more of the above, the Court will make an order for a decree nisi. An Order of Decree Nisi is a temporary order to separate the couple. The order automatically becomes absolute (i.e. permanent) after a period of three (3) months in the absence of any appeal from the affected party. A marriage is completely dissolved where a decree absolute is made by the Court.
Please note that neither of the parties have the right to appeal against the decision of the High Court where after the decree nisi has become absolute.
Please note also that where any of the parties dies before the three (3) months elapses, the order of decree nisi shall not become absolute.
Are there other facts a Petitioner needs to prove to be entitled to dissolution of the marriage?
Yes, a Petitioner in a suit for dissolution of marriage may not succeed in getting a divorce order if he/she has condoned any of the facts provided for under Section 15 (2) of the Act already discussed above.
What is the earliest time after marriage can a person bring an action for the dissolution of statutory marriage in Nigeria?
Divorce proceedings are usually after two (2) years of marriage? By virtue of Section 30 of the Matrimonial Causes Act, “….. 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”.
This above presuppose that a petitioner cannot institute a petition for dissolution of marriage within two (2) years of the marriage and such marriage can only be dissolved except with the leave (permission) of the Judge. Such leave is usually granted in exceptional circumstance and upon proof of cogent reasons which the court may find very convincing.
Section 30 (3) of the Matrimonial Causes Act provides for special grounds which will entitle a Petitioner to bring an action for dissolution of marriage within two (2) years of the marriage and such grounds include proof of exceptional hardship or exceptional depravity which will be caused to the petitioner unless the marriage isdissolved.
N.B: It is the duty of the Petitioner’s lawyer to apply for the leave by filing the necessary application in court.
Are there other known instances where the two (2) years rule will not apply before a Petitioner can apply for divorce?
Yes. The other instances where the two (2) years rule will not apply which have been recognized by the Court include the following:
i. Where there is wilfull and persistent refusal to consummate the marriage;
ii. Where the Petitioner can prove adultery since the marriage and he is unable to tolerate it.
iii. Where the Respondent has committed rape, sodomy or bestiality.
What is the procedure for initiating a dissolution of marriage proceedings?
i. A party seeking dissolution of marriage files a petition in the required form at the registry of any High Court in Nigeria. If the marriage is less than two (2) years old, then an ex parte application for leave of court needs to be filed and heard before filing the petition.
ii. The Petition and other accompanying documents, upon filing, are served on the respondent(s).
iii. The Respondent is required to respond within the time allowed by the Rules, usually thirty (30) days, by filing an Answer or Cross Petition to the petition.
iv. Thereafter the Court will order a compulsory conference where parties will meet and attempt to settle the matter amicably.
v. At the end of the conference, the parties are expected to file a compulsory conference report, and, settlement is impossible, the matter is then set for trial.
vi. Where the court upholds the petition or cross-petition, a decree nisi order is made which becomes absolute after three (3) months.
What is estimated timeframe for concluding a divorce in Nigeria?
It is difficult to predict the timeline for completing a divorce case.
In some states, a divorce case may be concluded within an average of six (6) to twelve (12) months.
In some others, for example Lagos State, a divorce proceeding may take up to eighteen (18) months or more.
What is the effect of dissolution of statutory marriage?
The effect of dissolution of a statutory marriage is that any of the parties to the marriage can marry again.
CONCLUSION
The above is for information only and does not constitute legal advice to any couple. The points discussed are extracted from and parts of a general overview of the process of dissolution of statutory marriage in Nigeria.
All marriages are not the same as each marriage may have specific or peculiar sets of facts in respect of which couples should seek appropriate legal advice and guidance.
