In all 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. A respondent may counterclaim against the petitioner by filing cross-petition if he or she has specific reliefs to seek from the court. This article focuses on the remedies that are principally available to the respondent or cross-petitioner, even though, some of these reliefs may also be grantable to the petitioner in deserving cases. The reliefs a respondent can seek are as follows:
1. Reconciliation: This is the process of helping an estranged couple reach amicable settlement of a matrimonial dispute and jettison the option of divorce or separation. Reconciliation is one of the available reliefs to the respondent in divorce proceedings. This relief is established by the Matrimonial causes Act, which admonishes the court to consider a relief of reconciliation where the court sees that it is possible. The Act provides for direct and indirect relief of reconciliation. The direct relief of reconciliation is that which is provided for in section 11 of the MCA. It provides that in divorce proceedings the court has the duty to consider the possibility of reconciliation of the parties of the marriage where the court observes that there is a reasonable possibility of such a reconciliation. The judge presiding over a divorce matter, with the consent of the parties, can interview the parties with the aim of achieving reconciliation between the parties. See Akinlolu v. Akinlolu (2019) LPELR-47416 CA. The indirect provision for reconciliation by the Act is the two-year rule provided for in section 30(1) of the MCA (i.e. the rule that divorce proceedings cannot be instituted where the marriage has not exceeded two years). This relief gives the respondent the opportunity to reconcile with the petitioner if the ground(s) for the divorce proceeds does not fall under the exceptions to the two-year rule.
2. Judicial Separation: This relief is available to the respondent in divorce proceedings where the respondent is willing to give the marriage a second chance. It should be noted that the two-year rule also applies to the granting of this order and it serves as a bar under section 30(1) of the MCA to any divorce proceedings initiated by the petitioner except it falls within the exceptions provided for in section 30(2) and (3) of the MCA. Where the respondent does not agree to divorcing his or her spouse, the respondent can pray to the court for a judicial separation instead in order to give room for possible settlement. A decree of judicial separation only relieves the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation. See Emmanuel v. Funke (2017) LPELR 43251 (CA) and Section 41 of the MCA. It should be noted that where, after the making of a decree of judicial separation, the parties voluntarily resume cohabitation, either party may apply for an order discharging the decree of judicial separation and the court shall make an order discharging the decree made, if both parties consent to it, or if the court is satisfied that the parties have voluntarily resumed cohabitation. See Section 45 of the MCA.
3. Alimony: This may also be called maintenanceA respondent who seeks a relief of judicial separation in divorce proceedings also has available to himself or herself the relief of Alimony either pending the conclusion of the proceedings or in the final judgment. Alimony is the financial provision made by a husband for his wife or vice versa while the marriage continues to exist. It is either interim or permanent alimony. Interim alimony is the provision made pendente lite (while the action is pending), in a suit for divorce where the respondent seeks for a relief of judicial separation. While a permanent alimony is the provision made after a decree of judicial separation, whilst the parties still remain husband and wife though without obligation to cohabit. See Hayes v. Hayes 2000) 3 NWLR (Pt. 648) 276.
4. Nullity: A respondent in divorce proceedings brought against him or her can seek the indulgence of the court to declare the marriage null having established any of the reasons provided for in section 5(1) (a-d) of the MCA. The grounds for nullity of a marriage must be, amongst others, that; at the time of the marriage the petitioner is incapable of consummating the marriage and it must be established that the petitioner is aware of this health issue but hid it from the respondent until after the marriage has been celebrated and that the petitioner has also refused treatment.
5. Jactitation of marriage: This is the persistent boasting of a marriage, falsely alleged to have taken place. Jactitation is one of the reliefs available to either of the parties in divorce proceedings. The court in the case of Achalla & Ors v. Okafor & Ors LPELR CA 2022, relying on section 114 of the MCA held that Jactitation of marriage is one of the matrimonial causes in Nigeria which makes it, by implication, a relief for either party. This comes into play for instance, where a person is under the impression that he or she is married to the respondent without evidence of such marriage and then goes around boasting that he or she is married to the other person, then due to the latter’s unavailability or failure of the latter’s supposed fulfillment of responsibility, the former institutes divorce proceedings against the respondent. The respondent can seek for a relief under the shield of jactitation of marriage. Where the court is satisfied, the court will grant the relief. The decree in its entirety avoid the presumption of marriage being raised by the petitioner and if otherwise it declares the validity of the marriage.
6. 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.
7. Asset Distribution/Settlement of property: This relief is available for both the respondent and the petitioner. The court may in divorce proceedings grant the relief of settlement of property sought for by either party by ordering either of them to make for the benefit of all the parties to the suit or any of the parties and the children of the marriage such a settlement of property to which the parties or either of them is entitled as the court considers just and equitable. The court may adopt a guideline in settlement of property in matrimonial causes in light of equity and justice of the circumstances of each case. See Igbuwe v. Igbuwe LPELR- 2023 CA and Ibeabuchi v. Ibeabuchi (2016) LPELR- 41268 CA.
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