Marriage is seen as a sacred union between two people. It is a contract which they have decided to enter into and is believed to be till ‘death do us part‘ meaning, for life. There are however certain situations that may lead to the end of such Marriage contract even before death parts them. Just like every contractual agreement between two people, the best way to resolve whatever issue the parties may have or be facing is by resorting to court.
What does Dissolution of Marriage Mean?
Dissolution of marriage commonly called divorce means putting an end to a lawful marriage by a decree of dissolution.
Parties to Dissolution of Marriage
There are usually 2 (two) parties to a Dissolution of Marriage case;
- The Petitioner – The person who initiates proceedings in court. It could be either the husband or wife in the marriage
- The Respondent – The party who responds to the petitioners proceedings instituted in court. This could either be the husband or wife of the marriage.
What Court has Jurisdiction to Hear an Application for Dissolution of Marriage?
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 a lawful marriage.
The High Court does not grant the dissolution of marriage without the petitioner proving competent facts to secure the dissolution.
Laws Guiding Dissolution of Marriage in Nigeria
The laws that guide divorce in Nigeria are;
- The Matrimonial Causes Act 1970 and
- The Matrimonial Causes Rule 1983.
When Can a Person Institute Proceedings for Dissolution of Marriage: The Two Year Rule?
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”.
Exception to the Two Year Rule
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 (this means a motion brought before the court without putting the other party on notice i.e. without informing the other party that you are submitting a motion to court) along with the petition for divorce.
The Court will only grant leave to institute proceedings for the following reason set out in Section 30 (3) of the Matrimonial Causes Act;
“The court shall not grant leave under this section to institute proceedings 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.”
This means that the Court will grant leave to institute divorce proceedings for a marriage under two years where not granting it would cause exceptional hardship on the applicant or the case itself involves exception moral evil or corruption.
Situations where the Two Year Rule Do Not Apply
The Two year rule will not apply in the following situations provided for under Section 30 (2) of the Matrimonial Causes Act;
Section 15 (a) and (b) –
(a) that the respondent has wilfully 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;
Section 16 (1) –
(1) Without prejudice to the generality of section 15 (2) of this Act, the court hearing a petition for a decree of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15 (2) (c) of this Act if the petitioner satisfies the court that‐
(a) since the marriage, the respondent has committed rape, sodomy, or bestiality; or
(b) since the marriage, the respondent has, for a period of not less than two years‐
(i) been a habitual drunkard; or
(ii) habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has, for a part or parts of such a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated; or
(c) since the marriage, the respondent has within a period not exceeding five years‐
(i) suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years; and
(ii) habitually left the petitioner without reasonable means of support; or
(d) since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition; or
(e) since the marriage and within a period of one year immediately preceding the date of the petition, the respondent has been convicted of‐
(i) having attempted to murder or unlawfully to kill the petitioner; or
(ii) having committed an offence involving the intentional infliction of grievous harm or grievous hurt on the petitioner or the intent to inflict grievous harm or grievous hurt on the petitioner; or
(f) the respondent has habitually and willfully failed, throughout the period of two years immediately preceding the date of the petition, to pay maintenance for the petitioner‐
(i) ordered to be paid under an order of, or an order registered in, a court in the Federation; or
(ii) agreed to be paid under an agreement between the parties to the marriage providing for their separation; or
(g) the respondent‐
(i) is, at the date of the petition, of unsound mind and unlikely to recover;
(ii) since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution.
Due to its length, I have highlighted the important parts of the section to note.
Ways of Dissolving Marriage in Nigeria
There are different ways available to a petitioner who seeks to bring an end to his or her marriage under Section 2 of the Matrimonial Causes Act. They include;
(a) Dissolution of marriage: Contained under Section 15 of the Act, this means the marriage no longer exists. The marriage is said to have ceased in the eyes of the law.
(b) Nullity of a voidable marriage: Contained under Section 5 of the Act, this means that if anything listed under Section 5 occurs at the time of the marriage then that marriage is voidable (can be annulled) at the instance of either party.
(c) Nullity of a void marriage: Contained under Section 3 of the Act, for a marriage to be void ab initio it means the marriage is not valid under the law and never was. The effect of this is that both parties are not legally married.
(d) Judicial separation: Section 39 of the Act provides for grounds for judicial separation. It means the parties are no longer under any obligation to co-habit as a married couple under the law but it shall not otherwise affect the marriage or the status, rights and obligations of the parties to the marriage. – Section 41 of the Act
(e) Restitution of conjugal right: Contained under Section 47 of the Act and;
(f) Jactitation of marriage: This is contained under Section 52 of the Act. It means that the respondent has falsely boasted and persistently asserted that a marriage has taken place between the respondent and the petitioner.
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.
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.
Documents Accompanying a Petition for Dissolution of Marriage
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