Unlike marriage, getting divorce (“Decree of Dissolution”) in Nigeria, is no walk in the park. The process can be overwhelming, frustrating and sometimes messy if not properly managed. Courts are very mindful and reluctant to dissolve marriages, as its priority is to ensure that parties are reconciled. Therefore, a Decree of Dissolution of marriage is seen as a last resort. This brief write-up, provides an insight in the process of obtaining a divorce in Nigeria.
Extant Law
In Nigeria, Divorce proceedings are governed by the “Matrimonial Causes Act 1970” (hereinafter referred to as the “MCA”) and the Rules made thereunder. Consequently, all references are to the Matrimonial Causes Act.
Grounds for Divorce in Nigeria
Under the MCA, there is only one ground for divorce, which is that, the marriage has broken down irretrievably. However, in order to convince the Court, that the Marriage has broken down irretrievably, you must satisfy at least one of the grounds provided in Section 15 of MCA: However, for clarity, these grounds are broken down as follows;
- fault divorce
- no fault divorce.
Fault Divorce
The following grounds constitutes “Fault Divorce”.
- that the respondent has willfully and persistently refused to consummate the marriage;
- that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
- that the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act;
- that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
Here the petitioner is asking the Court to dissolve the marriage because he/she feels that the other party did something wrong to warrant the decision to seek for dissolution of the marriage. It could get messy, if parties fail to manage their emotions. It is time consuming and prone to needless delays. Here, the proceedings could last up to 3 – 5 years in Court, if not well managed. At the end of the process, both parties come out as sworn enemies. If the Petitioner fails to prove the case or where he/she is found liable of adultery, the Court may likely dismiss the petition and in some cases award damages. If you must adopt any of these grounds, you must trade cautiously by seeking appropriate expert opinion.
No Fault Divorce
The following grounds constitutes “no fault divorce”:
- 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;
- that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
Here neither party is held accountable for the failed marriage. It can be achieved with minimal evidential burden particularly as the process is often consensual and faster. It saves time and gives room for privacy as parties need not embark on fruitless voyage of exposing their dirty linen in public space. There is no winner no vanquish as both parties will most likely come out of the process still as friends. This benefits the Children of the marriage as both parties are likely to work closely together in ensuring that their kids get the best of care. For the above reasons, these grounds are more recommended if you desire a seamless process.
Jurisdiction
By the provisions of section 2 of MCA, jurisdiction to hear and determine matrimonial causes (divorce proceedings inclusive) are vested in the High Court of each State of the Federation. Consequently, for the purposes of matrimonial causes, each states of the Federation enjoys one jurisdiction. That is to say that, a person domiciled in any State of the Federation is domiciled in Nigeria and may institute proceedings in the High Court of any State whether or not he is domiciled in that particular State.
However, in any case where maintenance is ordered in proceedings in a High Court, a court of summary jurisdiction (“Magistrate Court”) in any State shall have jurisdiction to enforce payment in a summary manner.
The Two-Year Rule
Section 30 of MCA provides that, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the court. The court will not grant leave except on the ground that to refuse to grant the leave would impose exceptional hardship on the applicant or that the case is one involving exceptional depravity on the part of the other party to the marriage.
In determining an application for leave, the court shall have regard to the interest of any children of the marriage, and to the question whether there is any reasonable probability of a reconciliation between the parties before the expiration of the period of two years after the date of the marriage.
Exception to The Two-Years Rule
By the provision of section 30 (2) MCA, the mandatory two-year rule is not applicable in the following situation;
- where the respondent has willfully and persistently refused to consummate the marriage;
- that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- since the marriage, the respondent has committed rape, sodomy, or bestiality;
- proceedings for a decree of dissolution of marriage by way of cross-proceedings.
Filing a Petition
Proceedings for a decree of dissolution of marriage is commenced via the filing of a petition by the petitioner.
Duration
MCA made no provision for the duration of divorce proceedings in Nigeria. However, divorce proceedings could last approximately a year if well managed. If not well managed or where proper expert advice is not sought, it could get messy and may extend to 3 – 5 years. To achieve a quicker process, it is advisable you adopt the “no fault” divorce option as explained above.
Reconciliation
It is the duty of the court in which a matrimonial cause (divorce proceedings) has been instituted to give consideration, from time to time, to the possibility of a reconciliation of the parties to the marriage (unless the proceedings are of such a nature that it would not be appropriate to do so), and if at any time it appears to the judge constituting the court, either from the nature of the case, the evidence in the proceedings or the attitude of those parties, or of either of them, or of counsel, that there is a reasonable possibility of such a reconciliation, the judge may do all or any of the following, that is to say, he may-
- adjourn the proceedings to afford those parties an opportunity of becoming reconciled or to enable anything to be done in accordance with either of the next two succeeding paragraphs;
- with the consent of those parties, interview them in chambers, with or without counsel, as the judge thinks proper, with a view to effecting a reconciliation;
- nominate a person with experience or training in marriage conciliation, or in special circumstances, some other suitable person, to endeavor with the consent of the parties, to effect a reconciliation.
Condonation/Connivance/Collusion
A decree of dissolution of marriage will not be made by the Court, if the Petitioner has condoned or connived at the conduct constituting the facts on which the petition is based or has been guilty of collusion with intent to cause a perversion of justice.
Decree Nisi/Absolute
The Court upon being satisfied that the Petitioner has been able to establish any of the grounds for divorce, shall, in the first instance, make a decree nisi. Instructively, the decree nisi does not signify the end of the marriage. It’s a confirmation that the marriage has broken down irretrievably and thereby creating a 3-month window period within which parties are given further opportunity to reconsider and explore reconciliation. During this period, any of the parties that is not satisfied with the decision of the court upon which the decree nisi is predicated, also has the option of appealing the decision before the order is made absolute.
If both parties are unable to reconcile their differences and/or none of the parties appealed against the decree of dissolution within the 3-month window period, then the Decree Nisi automatically becomes Absolute.
Where a decree nisi becomes absolute, the registrar or other proper officer of the court by which the decree was made will prepare and file a memorandum of the fact and of the date upon which the decree became absolute and the parties shall be entitled, on application to the registrar or other proper officer of the court by which the decree was made and on payment of the appropriate fee, to receive a certificate signed by the registrar or other proper officer that the decree nisi has become absolute, and a certificate given under this subsection shall in all courts and for all purposes be evidence of the matters specified in the certificate.
Conclusion
As seen from the above discourse, divorce proceedings are very complex and requires expert advice in order to achieve a seamless process devoid of glitch. To this end, it is therefore advised that you should first and foremost, consult a Legal Practitioner with considerable expertise in matrimonial matters to guild you through the process.
Written By:
Udenna Chukwuloba
Associate, Olisa Agbakoba Legal (OAL)
Contributor
