DISSOLUTION OF MARRIAGES IN NIGERIA: A STATUTORY APPROACH

 

Marriages contracted under the Marriage Act can only be dissolved in accordance with Matrimonial Causes Act (“MCA”). These are statutory marriages conducted in the any of the marriage registries in Nigeria (which are popularly referred to as Court marriages) and marriages conducted by churches who are licensed by the Government to conduct statutory marriages. Marriages conducted under native law and custom (aka traditional marriages), marriages in churches that are not licensed (aka white marriages) cannot be dissolved under the MCA.

The 2 Year Rule

Dissolution of a statutory marriage under the MCA cannot be instituted within 2 years of the commencement of the marriage[1] except with the permission of the Court.[2]  This is called the 2 year rule. There are a few exceptions to this 2 year rule and these include instances where one of the parties to the marriage committed adultery, has refused to consummate the marriage, has committed rape, sodomy or bestiality or by way of cross proceedings[3]

Jurisdiction

The High Court of all States in Nigeria are vested with the exclusive jurisdiction to hear and determine matrimonial causes inclusive of dissolution of marriages[4]. These proceedings can only be brought by a person domiciled[5] in Nigeria[6]. Furthermore, dissolution proceedings can be instituted in any State High Court in Nigeria whether or not the Party instituting the proceedings is domiciled in that particular State or not[7]. Hence, for the purpose of matrimonial causes, Nigeria is treated as one territorial jurisdiction.

Grounds for dissolution of a marriage

By virtue of Section 15 (1) of the MCA, there is only one ground for dissolving a marriage and it is that the marriage has broken down irretrievably. However, that are several facts which can be proved to show that the marriage has broken down irretrievably. Loosely put, these facts can also be referred as grounds. We shall consider these facts/grounds in detail:

a.      Willful and persistent refusal to consummate the marriage[8]- Where a party to the marriage refuses to have sexual intercourse with his/her spouse, this constitutes a ground for dissolution of the marriage. A Petitioner,[9] who institutes an action to dissolve the marriage under this ground must prove willful and persistent refusal of their spouse to consummate the marriage. Consummate in this sense refers to the first sexual intercourse between the couple. Hence, once the marriage has been initially consummated but an issue of refusal to have sexual intercourse by a spouse arises afterwards; the Petitioner cannot rely on this ground[10].

b.     Adultery- According to Black’s Law Dictionary, Adultery means the voluntary sexual intercourse by a married person with a person other than their spouse. Another ground for the dissolution of a marriage is where the Respondent has committed adultery with a third party since the inception of the marriage[11]. The Petitioner must however prove by cogent and credible evidence, the fact of adultery. However, the Court mostly relies on circumstantial evidence in proof of adultery due to its nature[12]. In addition, the Petitioner must prove that he/she finds it intolerable to live with the Respondent due to the adultery. Furthermore, under this ground, the third party alleged to have committed adultery with the Respondent must be joined to the suit as a Co- Respondent[13] and the Petitioner can claim damages from the third party for adultery[14]

c.      Intolerable behavior- This is the most popular and utilized ground for dissolution of a marriage under the MCA. A Petitioner can institute an action for dissolution of the marriage on the ground that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Petitioner[15]. The test of intolerable behavior is an objective test[16]. The conduct of the Respondent that a Petitioner will not reasonably be expected to put up with must be grave and weighty in nature so as to make cohabitation virtually impossible[17]. Also, Section 16 (1) of the MCA provides for additional instances of intolerable behavior and this includes where the Respondent has committed rape, sodomy; is a habitual drunkard or habitually gets intoxicated by drugs or the Respondent has been in prison for a period of time etc.

d.     Desertion:  Desertion is the withdrawal of support and cessation from co-habitation without the consent of the other spouse and with the intention of abandoning allegiance, fidelity or responsibility and to remain separated forever[18]. Married Couples ought to live together in the matrimonial home, so where one party deserts the other spouse with no justifiable reason for a continuous period of one year, the deserted spouse can institute an action for the dissolution of the marriage on the ground of desertion[19]. The period of desertion must not be less than a continuous period of one year. If a spouse comes back to the matrimonial home in less than a year and then deserts the matrimonial home again, the time of desertion starts running from the second date, he/she left. Where a spouse by virtue of his/her conduct causes the other party to the marriage to desert the matrimonial home, the offending party to the marriage will be deemed to have constructively deserted the marriage[20]. 

e.      The Parties have lived apart for a period of time: As aforementioned, couples are presumed to cohabit in the matrimonial home, hence when they have lived apart for a period of time; it constitutes a ground for the dissolution of the marriage. A Petitioner can bring an action where parties have lived apart for a continuous period of 2 years and the Respondent does not object to the Petition[21]. Also, a Petitioner can bring an action where parties have lived apart for a continuous period of 3 years, irrespective of whether the Respondent objects or not[22]. What a Petitioner must prove in this instances, is that the parties have lived apart for a continuous period of time, once this is proven to the satisfaction of the Court, the Court without more will dissolve the marriage.

 f.       Failure to comply with a decree of restitution of conjugal rights: Restitution of Conjugal Rights is also a form of matrimonial cause. Here a party approaches the Court to issue a decree to the other party to the marriage to restore conjugal rights in the marriage where the parties are judicially separated or living apart. Failure to comply with a decree of restitution of conjugal rights is a ground for dissolution of the marriage.[23]

 g.     Presumption of death: A Petitioner may present an action where the other party to the marriage has been absent from the Petitioner and the marriage for a period of time as to provide reasonable grounds for presuming that he or she is dead[24]. Section 16 (2) of the MCA also provides that where the other party of the marriage has been continually absent for a continuous period of 7 years, he shall be presumed dead and the decree of dissolution made by the Court shall be in the form of a decree of dissolution of marriage by reason of presumption of death.

 The 3 C’s of dissolution of marriage

 These are Condonation, connivance and collusion

Condonation & Connivance: Where the Petitioner has condoned the actions being complained about, a decree of dissolution of marriage will not be made. An instance is where a party to  a marriage commits adultery and the other party to the marriage fogives and condones the adultery, that party cannot turn around and bring a petition to dissolve the marriage based on that adultery because he or she will be deemed to have condoned it. While Connivance entail where the both parties to a marriage connive to dissolve the marriage

Collusion: A decree of dissolution of marriage shall also not be made if the Petitioner in bringing or prosecuting the proceedings has been guilty of collusion with intent to cause a perversion to justice. An example, is where a party to a marriage plans to leave the country and marry a foreigner in order to obtain a residence permit i.e., and that spouse arranges with the other party to the marriage to bring a divorce proceedings to enable the marriage, this is referred to a as collusion to do an illegal act and is prohibited by the MCA.

 

Cross Petitions

 Where a Respondent also has a claim against the Petitioner, the proper procedure is to bring a Cross Petition against the Petitioner seeking for a relief in a matrimonial cause which could also be for the dissolution of the marriage on other grounds. A Cross Petition is a separate and distinct suit from the Petition and must be proved to the satisfaction of the Court.

 

Effect of dissolution of marriage

 On the successful presentation of a petition or cross petition for dissolution of a marriage to the satisfaction of the Court, the Court makes a decree for dissolution of that marriage and upon the decree becoming absolute, any party to the marriage may marry again as if the marriage had been dissolved by death[25].

 

Decree Nisi and Decree Absolute

 A decree of dissolution of marriage by the Court is initially a decree nisi, which means it is temporary[26]. A decree of dissolution of marriage becomes absolute generally after a period of 3 months from the date the decree nisi was made[27]. Where there are children to the marriage sought to be dissolved, the decree nisi shall not become absolute until 28 days after the making of an order by the Court, that it is satisfied that proper arrangements for the welfare and education of the Children have been put in place.[28]

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[1] That is the day the wedding was conducted; the date on the marriage certificate

[2] See Section 30 (1) of the MCA. In granting leave what the Court considers is whether refusal to grant leave will impose exceptional hardship on the Applicant or whether exceptional depravity by the other party to the marriage is involved.

[3] Where the other party to the marriage has instituted an action for any p

[4] See 2 (1) of the MCA

[5] That is a person living in Nigeria or a deserted wife who was living in Nigeria before her marriage or before she was deserted.

[6] See Section 2 (1) (b) of the MCA

[7] Section 2 (3) of the MCA

[8] Section 15 (2 ) a

[9] A person who presents a Petition is referred to as the Petitioner while the other party to the marriage is referred to as the Respondent.

[10] See Section 21 of the MCA

[11] Section 15 (2) b

[12] See Okaome v Okaome & Anor LPELR-41466 (CA); Alabi v Alabi (2007) ) 9 NWLR (1039) 287.

[13] See Section 32 (1)

[14] See Section 31 of the MCA; See Alabi v Alabi supra

[15] Section 15 (2) c

[16] See Nwankwo v Nwankwo (2014) LPELR-24396 (CA)

[17] See Nwankwo v Nwankwo Supra; Ibrahim v Ibrahim (2007) 1 NWLR (Pt 1015) P. 383

[18] Nwankwo v. Nwankwo (2014) LPELR - 24396 (CA)

[19] Section 15 (2) d; Anioke v Anioke (2011) LPELR - 3774 (CA)

[20] See Section 18 of the MCA

[21] Section 15 (2) e

[22] Section 15 (2) f

[23] Section 15 (2) g

[24] Section 15 (2) h

[25] Section 33 of the MCA

[26] Section 55 of the MCA

[27] Section 58 (1) (a) I of the MCA

[28] See Section 57 (1) & 58 (1) (a) ii