“What God has joined together, let no man put asunder” Matthew 19:6
While there is an element of truism to the laconic phrase, it is submitted that it is the duty of man to put an asunder to what God has not joined together; and there is no better way to do that than to resort to court for legal binding to put an end to any traumatic marriage and free the parties from the attendant misery and pain they are living with under the guise of marriage.
Dissolution of marriage commonly called divorce means putting an end to a lawful marriage by a decree of dissolution. The application for dissolution of marriage is always instituted by way of petition in the High Court by a petitioner seeking to bring an end to the lawful marriage.
The High Court does not grant the dissolution of marriage without the petitioner proving competent facts to secure the dissolution. The laws that guide divorce in Nigeria are the Matrimonial Causes Act 1970 and The Matrimonial Causes Rule 1983.
The law is clear on the grounds for divorce in Nigeria, the first and most important thing is that the marriage must be at least 2 years old, in a situation where this isn’t the case, then there are special conditions which must be satisfied in order to dissolve such marriage. This is called The Two Year Rule and is provided for under Section 30 of (the Act) which states that:
“subject to this section 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”.
Thus to institute a petition for a marriage less than 2 years, the permission of the court must be sought by a motion ex-parte along with the petition for divorce.
*GROUNDS FOR DISSOLUTION*
There are different procedures and forms available to a petitioner who seeks to bring an end to his or her marriage under the Act. They include;
(a) Dissolution of marriage;
(b) Nullity of a voidable marriage;
(c) Nullity of a void marriage;
(d) Judicial separation;
(e) Restitution of conjugal right and;
(f) Jactitation of marriage.
However, there is technically a sole ground for which the petition for dissolution of marriage can be instituted, which is that “the marriage has broken down irretrievably.” This means that the cause of the breakdown is so austere that the marriage cannot be saved.
The ground can be proved through these facts provided in Section 15 (2) of the Matrimonial Causes Act 1970 as follows:
1. That the respondent has willingly and persistently refused to consummate the marriage.
For this particular fact to be pleaded, the petitioner must prove that the respondent has failed to have sexual intercourse with him or her, but where it is proved that sex occurred even once, the marriage will be deemed consummated and therefore the petitioner cannot rely on this ground for divorce.
2. That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
For this fact to hold water in court, the petitioner must prove that not only does the other party commit adultery but he/she finds it unbearable to live with such infidelity.
3. That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition. The desertion means that the respondent has abandoned the matrimonial home without justification.
5. That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.
6. 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.
7. That the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal right made under the Marriage Causes Act.
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances has to provide reasonable grounds for presuming that he/ she is dead.
Where the petitioner fails to so prove, the petition for dissolution of marriage will be dismissed. Also, the mere fact the petitioner alleges that the respondent is a witch, or is diabolic or the mere accusation that the respondent is not a good person will not be enough reason to dissolve a marriage.
It is worthy of note that a petition for divorce can only be entertained by a High Court Judge. Section 2 of the Matrimonial Causes Act states that:
“a person may institute an action under this Act in the high court of any state of the federation and the high court of the federal capital territory”.
Thus, if a divorce proceeding is brought before any court aside a High court of any state in Nigeria, such proceeding is nullified ab initio.
Moreso, a petitioner can file his/her petition in any state High court, but the matter of convenience must be put in place. For instance, If Mr. A as the petitioner and Mrs. B as the respondent both resides in lagos but the marriage was conducted in Enugu. In such circumstance where Mr.A decides to go to Enugu to pursue the petition, the principle of ‘Forum Convenience’ will be brought to play in the issue of Jurisdiction so as to ameliorate the issue of Inconvenience and the power of the court to transfer such petition may be invoked. This power has been given to the court by Section 9 of the Matrimonial Causes Act.
For the court to have Jurisdiction for a petition for dissolution of Marriage, the petition must be accompanied by the following documents:
(a) A verifying Affidavit to verify the fact stated in the petition;
(b) A notice of the petition in appropriate form i.e. forms 8, 9 or 10;
(c) A form of acknowledgement of service by the respondent and;
(d) A copy of the Marriage certificate.
In conclusion, A petition for dissolution of marriage can be presented on the ground that the marriage has broken down irretrievably and the court upon hearing the petition will only grant the order for dissolution of marriage where the petitioner satisfies the court of one or more of the facts listed above.
Written by Ibrahim, Ridhwan Olalekan