There has been a lot of misleading information about how married people can get divorced.  A lot of Nigerians are under the false impression that a marriage between a man and a woman can be dissolved by signing the ‘divorce papers’. This misconception has been fueled by the bogus stories on social media and even the movie industry (Nollywood). 

Introduction

How then is a marriage dissolved in Nigeria? In order to underscore the processes involved in dissolving a marriage, we need to answer the following questions;

1. What is marriage under the Nigerian Legal System?
2. What are the forms of marriage recognized in Nigeria?
3. What are the types of matrimonial reliefs available in Nigeria?
4. Under what circumstances can a court make a decree of dissolution of marriage?
5. What are the processes involved in getting a dissolution of marriage?

What is Marriage under the Nigerian Legal System and What are the Forms of Marriage Recognized in Nigeria?

To a layman in Nigeria, a marriage has been constituted when; a man pays the bride price of a woman, celebrates the traditional marriage, goes to the marriage registry to legalize the marriage (what people popularly call court wedding) and then further proceed to the church or mosque to celebrate the marriage (what people call white wedding or niqab).

Most people in a bid to ‘fire on all cylinders’ do all three, some do one and some only two. 

Under the Nigerian legal system, there are 2 (two) recognized forms of marriage and they are;

1. Traditional/customary marriage and
2. Marriage under the Act. 

The former allows polygamy while the latter is monogamous in nature. 

Our focal point is Marriage under the Act. The Act in this case is the Marriage Act CAP M6, LFN 2004. Marriage in this regard, is between one man and one woman, it can either be celebrated in a licensed place of worship by a recognized minister of the church, denomination or body to which such place of worship belongs or in the Registrar’s office by the Registrar of Marriages. 

A person can either constitute his/her marriage under any of the following forms listed above.

To explain better, Michael cannot marry Angela according to Native Laws and Customs and then proceed to marry Racheal under the Act. The marriage between him and Racheal is invalid. If he is to consider marrying under the Act, he must marry Angela under the Act or if Michael wants to marry both Angela and Rachael, he must do so under Native Laws and Customs.

What are the Forms of Matrimonial Reliefs?

It is always sad to a see a beautiful union like marriage come to an end. Whatever the case, there are statutory provisions for this kind incidents. 

Kindly note once again that our focus is Marriage under the Act. When a Marriage is contracted under the Act, the following statutes guide it;

1. Marriage Act CAP M6 LFN 2004 (MA)
2. Matrimonial Causes Act 1970 CAP M7 LFN 2004 (MCA)
3. Matrimonial Causes Rules 1983 (MCR)

Section 2 of the MCA confers jurisdiction to hear a matrimonial suit on the High Court of a State, this includes the High Court of the Federal Capital Territory. Parties in a matrimonial suit are called the PETITIONER, RESPONDENT and sometimes the CO-RESPONDENT. To explain further, the Petitioner is the party that wants the divorce, the Respondent is always the spouse of the petitioner whom he or she wants the divorce from and the Co-Respondent is the partner of the Respondent in the case of an alleged Adultery committed by the Respondent. 

If a Petitioner decides to initiate a matrimonial suit, he/she can ask for any of the following reliefs;

1. Dissolution of Marriage (Divorce) – our main focus. 
2. Nullity of Marriage (Void or Voidable)
3. Judicial Separation
4. Restitution of conjugal rights 
5. Jactitation. 

Let us briefly attempt to explain these reliefs.

1. Nullity of Marriage (Void or Voidable)

A court can issue a decree of nullity in respect of a void or voidable marriage. A nullity challenges the validity of the marriage as a result of some unforeseen or negligent circumstances which may or may not be associated with either party or due to failure to comply with the formalities of marriage. Circumstances where a marriage can be considered void or voidable are contained in the provisions of the MCA. 

2. Judicial Separation

As provided in Section 39 of the MCA, this decree does not sever the marriage, and neither party can remarry, it only relieves the Petitioner from the duty of cohabiting (and all incidences flowing from cohabitation) with the Respondent. It does not affect the rights and obligations of the parties to the marriage. Note that either party can further institute proceedings for the total dissolution of the marriage. Judicial Separation is given with the hope that parties may later reconcile in the future. 

3. Restitution of Conjugal Rights

As contained in Section 47 of the MCA, a decree of restitution of conjugal rights is normally granted to a deserted spouse. This decree is giving when parties whether or not they have at any time cohabited, are not cohabiting, and that without just cause or excuse, the party against whom the decree is sought refuses to cohabit with, and render conjugal rights to the Petitioner. 

4. Jactitation of Marriage

This is a discretionary relief granted by the court to a Petitioner who alleges that he/she is not married to the Respondent, but the Respondent is falsely and continuously asserting that he/she is married to the Petitioner. It serves as an injunction restraining the Respondent from parading himself as the spouse of the Petitioner and is contained in Section 52 of the MCA. 

Under What Circumstances Can a Court Make a Decree of Dissolution of Marriage?

There are certain circumstances under which the court can make a decree of dissolution of marriage. In Section 15 of the MCA, the court may make a decree of dissolution on the ground that the marriage has broken down irretrievably. What then amounts to a marriage breaking down irretrievably? 

Section 15(2) of the MCA provides that the court may hold that a marriage has broken down irretrievably if, but only if, the Petitioner satisfies the court of one or more of the following facts;

1. That the Respondent has willfully and persistently refused to consummate the marriage.
2. That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent. 
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. 
5. 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.
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 that one year, failed to comply with a decree of restitution of conjugal rights made under this Act.
8. 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. 

The 2 (Two) Year Rule

With the prevalence of divorce of early marriages, there are cases where, parties who are married 2 (two) years or less seek to dissolve their marriage.

Generally, under Section 30 of the MCA, no petition for a decree of dissolution of marriage shall be instituted within 2 years after the date of the marriage except by leave of the court. That is, you must seek the permission of the court first before a marriage within 2 years is sought to be dissolved. However, like every general rule, there are exceptions. These exceptions are when situations like in Section 15(2)(a) or (b) above or in Section 16 (1)(a) of the MCA occur. 

Read our article going into detail about the 2 (two) year rule here.

What are the Processes Involved in Getting a Dissolution of Marriage?

A party or person seeking to dissolve his or her marriage should seek the assistance of a legal practitioner for professional help and guidance.

The Petitioner’s lawyer shall begin the process by a way of Petition, except where leave of the court is to be sought and granted. According to the MCR, the following steps shall be taken by the Petitioner’s lawyer:

1. Draft and serve a Petition. This petition contains the suit; facts of the whole matrimonial suit and the reliefs being sought. Every PETITION must be accompanied by the following documents;

• Notice to Petition
• Marriage Certificate 
• Acknowledgement of Service 
• Verifying Affidavit.

2. The Respondent/Co-Respondent (where there is one) may file an ANSWER where he/she shall deny, admit or allege facts that he/she intends to rely on in defense to the petition or state that he/she does not know and cannot admit the truth of a fact alleged in the PETITION. 
3. Where an ANSWER contains allegations of facts, the Petitioner may file a REPLY to deny, allege an additional fact or admit the truth of a fact or even state that he/she does not know and cannot admit the truth of a fact alleged in the ANSWER. 
4. The Respondent/Co-Respondent (where there is one) may file a REJOINDER if need be in the same manner as described above pertaining to an allegation of fact arising from the REPLY. 

Kindly note in the case of an alleged adultery, the party involved will make a written confessional statement called a DISCRETION STATEMENT to the court in a sealed envelope. 

5. There might be a COMPULSORY CONFERENCE where issues relating to; maintenance of a party to the suit, settlement of jointly owned property, custody or guardianship of an infant child/children of the marriage, maintenance, welfare or advancement of such child/children are resolved. 
6. Next, the suit is settled down for hearing. The suit might be defended or undefended. 
7. After hearing, at the conclusion of the hearing of the Petition seeking a dissolution of marriage, if satisfied that there exists, a ground in respect of which a relief of dissolution is sought, the court shall first make a DECREE NISI. This Decree Nisi may be made ABSOLUTE after the expiration of 3 months from the making of the decree. Kindly note that until the decree becomes absolute, the marriage is deemed to be subsisting and even death of either party cannot make the decree absolute. 

Conclusion

Finally, we can therefore, agree that a divorce cannot be granted by ‘merely signing the divorce papers’. There are processes involved, as described above and in some cases these processes might take a year or even more.