Divorce and child custody issues are complex and emotionally charged aspects of family life. In Nigeria, dissolution of marriage can be according to statute, customs and tradition, depending on how the marriage was formed. A marriage conducted or celebrated under the Marriage Act (usually at the Marriage Registry) is a statutory marriage and as such can only be dissolved in accordance with the relevant statute. The dissolution of statutory marriage is governed by the following:
i. Matrimonial Causes Act, Cap. M7, Laws of the Federation, 2010 (“MCA”);
ii. Marriage Act, Cap. M6, Laws of the Federation, 2010 (“MA”);
iii. Matrimonial Causes Rules 1983.
It should be noted that except facts are overwhelming, order of dissolution of marriage is not granted as a matter of cause. Section 11 of the MCA provides for reconciliation, which is termed a duty of the court, and until reconciliation is seen to have failed or impossible, no court is empowered to dissolve a statutory marriage. Also, a divorce may not be granted where the parties are in collusion to get divorce through fabricated facts.
Below are key questions on divorce and child custody under Nigerian law.
1. What is a divorce?
A divorce is a court action filed by a spouse (called petitioner) against the other in a marriage, seeking order of a court to end the marriage. A divorce, also known as the dissolution of marriage, is the formal, legal ending of a marriage by a court. When a court grants a divorce order, it means a marriage is dissolved. A dissolution of marriage completely ends a marriage.
In Nigeria, for a marriage to undergo divorce proceedings in court, such marriage must be a statutory marriage under the Marriage Act, legally conducted and evidenced by a valid certificate from the Marriage Registry.
2. On what ground can a marriage be dissolved?
The grounds for filing a divorce case are stated in the Matrimonial Causes Act and unless a petitioner meets the statutory conditions, a divorce case may fail. By section 15(1) of the Matrimonial Causes Act, a marriage may be dissolved on the ground that the marriage has broken down irretrievably.
3. How does one prove that a marriage has broken down irretrievably?
According to S.15 (2) of the MCA, a marriage is deemed to have broken down irretrievably is the petitioner can prove one or more of the following facts:
(a) that the respondent has willfully and persistently refused to consummate the marriage;
(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
(e) 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;
(f) that the parties of the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
(g) that the other party to the marriage has for a period not less than one year failed to comply with a decree of restitution of conjugal rights made under the Act; and/or
(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable ground for presuming that he or she is dead.
The petitioner must prove one or more of the above facts before he can succeed. Where the petitioner fails to so prove, the petition for dissolution of the marriage will be dismissed even though the divorce is desired by both parties. Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 CA 25
Please note that there are guiding principles for determining whether any of the above grounds has been sufficiently proved or not. It is therefore important to seek the advice of a divorce lawyer in respect of the marital issues between spouses.
For instance, the test as to whether a petitioner for the dissolution of a marriage can or cannot be expected to live with the respondent is objective. Consequently, it is not sufficient for a petitioner to merely allege that he or she cannot live with the respondent because of the respondent’s behaviour. The alleged behaviour must be so terrible, traumatic or discomforting or disappointing that a reasonable man cannot endure.
In Nanna v. Nanna (supra), the court had stated that the two facts are severable and independent and both must be proved. The petitioner must prove the detestable act and condemnable conduct and then proceed to prove that he or she finds the act intolerable to live with the respondent. Unless the petitioner satisfies the court on both of these tests, the court may refuse to hold that the marriage has broken down irretrievably.
4. How does a petitioner prove that a respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent?
Pursuant to section 16 (1) of the MCA, in order to establish that the respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent, the Petitioner must establish amongst others, the following:
(a) that during the marriage, the respondent committed rape, sodomy or bestiality; or
(b) the respondent has, for not less than two years, been a habitual drunkard; or habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation; or
(c) Since the marriage, the respondent has within a period not exceeding five years, suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years; and habitually left the petitioner without reasonable means or support; or
(d) the respondent has, since the marriage and at the date of the petition, been of unsound mind and is unlikely to recover.
5. Is cruelty a ground for divorce in Nigeria?
Spousal cruelty is not a statutory ground for divorce in Nigeria though it may establish intolerability of the cruel spouse’s conduct. The Court of Appeal in the case of Bibilari v. Bibilari (2011)13 NWLR (Pt. 1264) 207 CA, held that cruelty is not one of the statutory grounds set out under section 15(2) of the MCA for divorce. However, it remains one of the old grounds for divorce.
Although cruelty may not be a statutory ground for divorce under the MCA, however, facts related to spousal cruelty can be relied upon to show that the respondent (in a petition for dissolution of a marriage) has behaved or conducted himself or herself in a way that the petitioner cannot be reasonably expected to live with the respondent. This is a matter of procedural technicalities which an experienced divorce lawyer should know. A petitioner cannot ask for divorce order on the grounds that the respondent is cruel; but can succeed if he or she shows that the respondent’s acts are intolerable and therefore the marriage has broken down irretrievably as a result of the respondent’s acts of cruelty.
In Nanna v. Nanna (supra), the court was satisfied that the undenied acts of aggression and physical violence meted to the respondent by the appellant constituted acts of matrimonial cruelty.
6. How are proceedings for divorce commenced in Nigeria?
By the provision of section 2 of the MCA, the jurisdiction over a divorce proceeding is vested in the High Court of a State of Nigeria and the Federal Capital Territory (FCT) Abuja. There are High Courts in all the 36 States and the FCT.
In order to commence a divorce proceeding, a petition can be filed in the High Court of any State or the FCT, accompanied by the original (photocopy) marriage certificate, verifying affidavit, acknowledgement of service, certificate of reconciliation and discretion statement (applicable only where one of the parties has committed adultery).
It may be necessary to apply for leave before filing a divorce proceedings in deserving circumstances, according to the law, especially where the marriage is less than two (2) years.
7. Can a decree of dissolution of Marriage be made in respect of a marriage that is less than 2 years?
Generally, pursuant to section 30 (1) of the MCA, divorce proceedings shall not be instituted within two (2) years after the date of the marriage, except with leave of court. This is known as the two-year rule.
In order to file a divorce petition for a marriage of less than two (2) years, the permission of the court must be sought first by filing a motion ex-parte, along with a copy of the proposed petition for divorce. Leave of court will only be granted, if in the opinion of the court, failure to grant such a leave will cause exceptional hardship or depravity to a party to the marriage.
However, there are exceptions to the above two-year rule and in the following instances, a petitioner will not need to seek the leave of court before instituting a divorce proceeding, especially where:
- the respondent has willfully and persistently refused to consummate the marriage;
- the respondent has since the marriage committed adultery and the petitioner finds it intolerable to live with the respondent; and
- the respondent has committed rape, sodomy or bestiality.
8. What must be established to prove adultery in a divorce proceeding?
In Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297 CA, the court defined adultery as consensual sexual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had.
In order to establish adultery, a petitioner must prove all of the following facts:
(a) there was a sexual intercourse;
(b) the sexual intercourse was voluntary; and
(c) at least, one of the parties is married to someone else.
Proof of adultery is very difficult but not impossible. Apart from direct evidence of adultery, which is very rare, adultery is usually proved by circumstantial evidence, which could take various forms. Few examples are as follows:
- Familiarity and opportunity: if parties are intimate and they have been together in circumstances in which it could be reasonably inferred that they have committed adultery, then they will be presumed to have done so unless there is evidence to the contrary.
- Venereal disease: if the petitioner can prove that the respondent had contacted a venereal disease from a third party during the marriage, this will give rise to a presumption of adultery.
- Brothel: if a spouse visits a brothel with a third party, it will be presumed that such a spouse has committed adultery. In a decided case, a hotel receipt showing a spouse lodged without the knowledge of the petitioner was admitted in evidence to prove adultery.
- Confessions and admissions of adultery: These types of evidence are usually scrutinized because of the danger of fabrication. The court takes into account all circumstances including the desire for a divorce of the party confessing. In such a case, the court usually insists that the evidence be corroborated, although it may not necessarily refuse a divorce order simply because the evidence is not corroborated. Caution is simply advised in acting on such.
- The birth of a child, by the co-adulterer for the respondent or vice versa. The birth of a child through another man or woman while married to another is a prima facie evidence of adultery unless a DNA test proves otherwise. See Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297 CA 356-357.
9. Can a third party be joined in a divorce proceeding?
Yes. Apart from the husband and wife seeking to end their marriage, a third party may be added to the legal proceedings where there is an allegation of adultery. Under Nigerian law, a co-adulterer may be joined in a divorce action that is founded on adultery. This is however subject to the rules of court and the peculiar facts of each case.
Other instances where a third party may be added are where:
- Paternity of the child(ren) of marriage is in issue. That is, where another man claims to be biological father of the child(ren);
- The petitioner and the respondent jointly own a property or properties with another person’s;
- The parties to dissolution of marriage have business interests together with another party, etc.
The joinder of a third-party addition is to protect the third party’s interest, if any. For instance, where another man claims to be the biological father of the child(ren) of the marriage, he is expected to seek leave of court to join the proceedings, by filing a motion on notice and other accompanying processes. The court will most likely grant the application for joinder and, thereafter, order a DNA test to establish the true paternity of the child(ren) of the marriage. And where it is established that the child belongs to the third party, the husband in marriage will have a good ground to ask the court to dissolve the marriage on the ground of adultery, and charge the wife and the third party for Bigamy (see section 70 of the Criminal Code Law) and accordingly award the custody of the child as might occur to be appropriate to the court. However, such a child remains an illegitimate one.
With respect to joinder of a third party in a divorce proceeding involving a joint ownership or business venture, the basis for such joinder is to ensure that properties that belong to many are not shared to just only the spouses, who are the initial parties to petition, otherwise, there will be no limit to litigation. So, it is expedient for the court to bring all the parties before it and determine their rights and obligations in one proceeding.
10. What is Custody of a Child?
Child custody refers to the legal and physical right or duty to provide shelter and other necessary care for the child(ren) of the marriage, especially after parents have been legally separated.
After the dissolution of marriage, both parents usually share legal and physical custody of their children. This is called Joint Legal Custody and it has been argued that this is the best type of custody which affords the children opportunity to grow up with equal influence from both parents.
In the alternative, one parent may be granted physical custody of the children, while the other parent will be given what is commonly known as “access right” or “visitation right”, which is simply the right of a parent to visit, or be visited by the child for a definite time and at a definite place.
Please note that a denial of a court-ordered custody or access right is a contempt of the court, punishable by imprisonment or fine, as the court may deem fit. However, experience has shown that a parent granted physical custody of the children of the marriage after a fierce divorce proceeding, usually denies the other party access rights out of malice and bitterness. Any aggrieved party who has been denied access rights may commence contempt proceedings against the party with physical custody and pray the court for an order to commit the respondent to jail for flouting the order of court.
11. Will the determination of the custody of children of a marriage affect proceedings for the dissolution of the marriage?
Yes, it will. By the provisions of the MCA and the Child Rights Act, in any custody and guardianship proceedings, the paramount consideration of the court is the best interests of the children of the marriage and the court may make orders in respect of these matters as it thinks fit.
Section 71 of the Matrimonial Causes Act, 1970 contains the guidelines the courts are to follow in proceedings in respect of custody of children of the marriage and the section reads, thus:
“(1) In proceedings with respects to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper.
(2) The court may adjourn any proceedings within sub-section (i) above until a report has been obtained from a welfare officer or such matters relevant to the proceedings as the court considers desirable and any such report may thereafter be received in evidence;
(3) In proceedings with respect to the custody of children of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.
(4) Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage or by the parties or a party to the marriage as the case may be.
For emphasis, the paramountcy is such that a decree of dissolution shall not be made absolute until the court is satisfied as to arrangements made for the upbringing of the children of the marriage, and a decree absolute made on an inadvertent non-compliance with the custody and maintenance of the children shall be declared void. See Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 CA 35-36.
The court may adjourn any proceedings until a report on the welfare of the children has been obtained from a welfare officer. Also, the court has the discretion to make an order placing the children in the custody of a person other than a party to the marriage.
12. Are there other factors that the court will consider in granting a child custody?
Yes. The court, besides considering the interest of the children to be paramount, regard may be had to other factors, such as:
- The wishes of the child(ren), if any;
- Education and religion of the child(ren);
- Conduct of the parents;
- The age and sex of the child(ren);
- Adequacy of arrangement for the child(ren);
- The wishes of natural parents;
- The medical and psychological factors which may arise from the change of the custody of the child;
- Nationality of the mother;
- The court in giving an order of custody will also consider the equal rights of the parents. See Oluwa v. Oluwa (1980) CCHCJ 239.
Generally, the mother will usually be favourably considered as a better custodian of a child of a tender age though this is not expressly provided in any statute. Also, there is also no rule that when a child is female, her custody should be granted to the mother. However, children who are female and in their growing or formative years are, on the whole, other things being equal, are largely considered to be better off being in the custody of their mother. Following a divorce of a marriage with a child of a tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear that the contrary is the situation, e.g. upon proof of immorality of the mother, infectious diseases in the mother, insanity and cruelty to the child. See Alabi v. Alabi (supra).
*************************************************************************************************************
About KORIAT & CO.
KORIAT & CO. is a commercial law firm in Lagos Nigeria with versed experience and a network of lawyers in Ghana, Kenya, Uganda and Rwanda helping clients on business establishment, regulatory compliance and dispute resolution.
Please contact us via admin@koriatlaw.com or +2349067842241 if you have any question or require any assistance on any aspects of the above article.
The above article is for information only and not to serve as legal advice to readers.
