Marriage is the socially, culturally and legally recognized union of two persons. However, there are often times when this harmonious union ceases, leading to either party seeking to dissolve the marriage and bring all matrimonial relationships and connections to an end.
Grounds on which a Divorce Petition can be Filed
Within the Nigerian legal jurisdiction, there is only a singular ground upon which any person seeking for dissolution of his/her marriage may base a petition before the court. This sole ground is that such marriage must have broken down irretrievably.
The Matrimonial Causes Act (MCA) is the principal legislation on Marriage in Nigeria. It sets out the procedure for dissolution of marriage and also for custody and maintenance matters. It is this Act which stipulates this sole ground and it goes further in its provision to explain and exemplify what amounts to the term “broken down irretrievably”
When Can a Marriage be Categorized as “Broken Down Irretrievably”
To satisfy a court that a marriage has broken down irretrievably, the Petitioner (i.e. the initiating party) must prove one or more of the following to the court against the Respondent (i.e. the other party):
(a) That the Respondent has willfully and persistently refused to consummate the marriage.
(b) That since the marriage, the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
(c) That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with.
(d) That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
(e) 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
(f) That the parties to the marriage have lived apart for a continuance period of at least three years immediately preceding the presentation of the petition
(g) 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
(h) 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.
Where a petitioner fails to prove at least one of the facts contained in (a) – (h), the petition for divorce will fail, be dismissed and the marriage will not be dissolved notwithstanding the fact that both parties desired the divorce. Where on the other hand, the petitioner proves at least one of the facts contained in (a) – (h), the Court will then make an order for a “decree nisi”.
What is a Decree Nisi?
A Decree Nisi is a temporary order made by the court for the dissolution of the marriage, it is temporary in the sense that it only survives for a period of 3 months. During this 3 month period a dissatisfied party, who is for instance dissatisfied with the grounds of the divorce, custody and other related matters, can appeal the decision of the court. In the absence of any such appeal, after a period of 3 months, the order of decree nisi becomes “absolute” and the dissolution of the marriage final.
What Court has Jurisdiction in Dissolution of Marriage Proceeding?
Where Can a Petition be Filed?
In matrimonial causes, the entirety of Nigeria is seen as one single jurisdiction, as such a divorce petition can be brought in any of the high court of any state. Nonetheless, where a petition is filed in a state that causes great inconvenience or burden to either party or where it is in the general interest of justice, the courts have the power to transfer such petition to another state high court for the matter to be heard.
Who Can File a Petition?
The most important factor for jurisdiction in matrimonial causes is that the party bringing the petition must be “domicile” in Nigeria. Where a petitioner is not domiciled in Nigeria and is domiciled in another country, no Court anywhere in Nigeria will have jurisdiction to hear the petition.
In determining whether a Person is domiciled in Nigeria, it is not sufficient that such a person is of Nigerian Nationality. The courts will consider the evidence of whether the petitioner made Nigeria his permanent home and principal residence to which, he has every intention of returning.
Domicile Vs. Residence; Is there a Difference?
Domicile vs Residence, Is There A Difference? –
Domicile is a person’s true, fixed, principal, and permanent home to which that person intends to return and remain even though currently residing. Every person has a domicile at all times, and no one has more than one domicile at once. While similar, a place of residence is different from domicile. Residence usually just means bodily presence as an inhabitant in a given place, whereas domicile usually requires bodily presence plus an intention to make the place one’s home.
A person may have more than one residence at a time. Rather than the place of residence, it is the place of domicile that determines a person’s legal rights and privileges e.g. right to vote.
When Can a Petition be Filed?
A divorce Petition can only be filed after at least 2 years of marriage. Section 30 of the Matrimonial Causes Act is to the effect that proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage, except with leave of court.
Are there any Exceptions to the 2-Year Rule?
The closing of Section 30 of the Matrimonial Causes Act which states “except with leave of court.” indicates that there are certain instances where the courts will allow a petition to dissolve a marriage of 2 years old or less.
The Act provides in Section 30 (3) that the court will allow the petition where it would impose exceptional hardship on the applicant or where it is a case involving exceptional depravity on the part of the other party to the marriage.
Dissolution of Marriage and Custody of Child(ren)
It is not the law that a party who succeeds in the proceedings shall always be awarded the custody of the children of the marriage. In the determination of the issue of custody of children, the courts consider a number of factors, paramount of which is always the welfare of the children.
In deciding what the welfare of a child is, factors which have been considered relevant by the courts include:-
(a) degree of familiarity between the child and each of the parents respectively;
(b) the amount of affection between the child and each of the parents;
(c) the respective income and position in life of each of the parents;
(d) the arrangements made by the parties for the education of the child;
(e) the fact that one of the parents now lives as man and wife with a third party who may not welcome the presence of the child;
(f) the fact that young children should as far as practicable, live and grow up together;
(g) the fact that in cases of children of tender ages should, unless other facts and circumstances make it undesirable, be put under the care of the mother;
(h) the fact that one of the parents is still young and may wish to marry and the child may become an impediment.
These factors are only some to be considered and the courts usually decide each case based on the peculiar facts and circumstances placed it.
Matrimonial causes proceedings, including dissolution of marriage, spans across a number of complex parameters, only some of which have been highlighted in this article.
The process is sui generis (i.e. unique) and the technical nature of the entirety of proceedings, from the filing of the petition to the conclusion of the suit, makes it advisable to always consult the service of legal professionals in the institution of any such matter.
Written by Efemena