A. Introduction
This edition of Akintunde Esan's Legal Illumination is focusing on how to initiate or commence a divorce process in Nigeria and the the only eight (8) legal grounds upon which a divorce is legally required to be filed in Court in Nigeria as provided in theMatrimonial Causes Act, which is the Law regulating the filing for Divorce in Nigeria.
B. Where to Get a Divorce
The place to get a divorce in Nigeria is either in theHigh Court for statutory marriages or the Customary Court for customary marriages.
The legal implication of having either a customary or a statutory marriage is that, while a statutory marriage can only be dissolved by a High Court of competent jurisdiction on the statutory grounds provided in the Matrimonial Causes Act, a customary marriage can be dissolved arbitrarily or without resorting to the Customary Court by:
i) The wife leaving the husband and the bride price being refunded; or
ii) The husband driving away the wife; or
iii) By mutual consent of the couple.
The Jurisdiction of the High Court to hear a Divorce Petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the Court with jurisdiction to adjudicate on a divorce matter is the Court of the domicile of the husband.
C. How to initiate or Commence a Divorce Process
A divorce is initiated or commenced in any of the High Courts in Nigeria by the filing of the following documents or Court processes at the Court’s Registry:
D. The Eight (8) Legal Grounds for filing for Divorce in Nigeria
By virtue of Section 15(1) of Matrimonial Causes Act, the High Court has the jurisdiction to make an order dissolving a statutory marriage only on the general ground that, the marriage has broken down irretrievably.
However, the High Court in coming to the conclusion whether a marriage has broken irretrievably is required to take into consideration the occurrence of one or more of the specific eight (8) grounds set out in sub-section (a) to (h) of Section 15 (2) of the Act.
In divorce case between LT. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006) LPELR-7670(CA) Ariwoola, J.C.A at P. 24, paras. C-G, illuminated on the issue of ground and grounds for divorce as follows:
L. Conclusion
i) The wife leaving the husband and the bride price being refunded; or
ii) The husband driving away the wife; or
iii) By mutual consent of the couple.
The Jurisdiction of the High Court to hear a Divorce Petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the Court with jurisdiction to adjudicate on a divorce matter is the Court of the domicile of the husband.
C. How to initiate or Commence a Divorce Process
A divorce is initiated or commenced in any of the High Courts in Nigeria by the filing of the following documents or Court processes at the Court’s Registry:
(a) Notice of Divorce Petition;
(b) Sealed copy of the Divorce Petition
(c) Certificate relating to reconciliation;
(d) Affidavit verifying the Petition;
(e) Acknowledgement of Service of the Petition; and
(f) Copy of Marriage Certificate.
D. The Eight (8) Legal Grounds for filing for Divorce in Nigeria
By virtue of Section 15(1) of Matrimonial Causes Act, the High Court has the jurisdiction to make an order dissolving a statutory marriage only on the general ground that, the marriage has broken down irretrievably.
However, the High Court in coming to the conclusion whether a marriage has broken irretrievably is required to take into consideration the occurrence of one or more of the specific eight (8) grounds set out in sub-section (a) to (h) of Section 15 (2) of the Act.
In divorce case between LT. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006) LPELR-7670(CA) Ariwoola, J.C.A at P. 24, paras. C-G, illuminated on the issue of ground and grounds for divorce as follows:
"The learned counsel contended that there is only one ground for the dissolution of marriage in our law. This with respect may not be totally correct, to say the least, as there are several grounds which the Matrimonial Causes Act refer to as "facts". (See; Sections 15(2) and 16(1), Matrimonial Causes Act.
However, in Nigeria, a Court cannot dissolve a marriage or declare a marriage to have broken down unless one of the facts listed in Section 15(2) is established by the petitioner, even though it appears the marriage has broken down irretrievably."Thus, an occurrence of any of the following eight grounds or situations or facts in the eyes of the Matrimonial Causes Act is a conclusive proof that, a marriage has broken down irretrievably or generally and therefore ripe for divorce or dissolution:
Ground 1: Denial of Sexual Intercourse
This is where a spouse has willfully and persistently refused to have sexual intercourse with an aggrieved spouse. Section 15(2)(a).
Ground 2: Adultery and Intolerable Behaviours
This where a spouse has committed adultery and the offended spouse find it intolerable to live with the offending spouse. Section 15(2)(b).
Ground 3: Unreasonable Behaviours
This where a spouse behaves in such a way that the aggrieved spouse cannot reasonably be expected to live with such a spouse. Section 15(2)(c).
This is where a spouse has willfully and persistently refused to have sexual intercourse with an aggrieved spouse. Section 15(2)(a).
Ground 2: Adultery and Intolerable Behaviours
This where a spouse has committed adultery and the offended spouse find it intolerable to live with the offending spouse. Section 15(2)(b).
Ground 3: Unreasonable Behaviours
This where a spouse behaves in such a way that the aggrieved spouse cannot reasonably be expected to live with such a spouse. Section 15(2)(c).
Section 16(1) set out the behaviors that can be said to be the ones that, a person cannot be reasonably expected to live with to include:
a) Commission of sexual offences such as: committed rape, sodomy, or bestiality.
b) Habitual drunkenness or drug addiction: for a period of not less than two years.
c) Frequent convictions and imprisonment for crime.
d) Habitually leaving a spouse without reasonable means of Support.
e) Attempt to murder and assault spouse.
f) Habitual and willful failure to provide court ordered or agreed support for two years.
g) Insanity and unsoundness of mind
Ground 4: Abandoning of Spouse
Where a spouse has abandoned or deserted the other spouse for a continuous period of at least one year .
a) The types of desertion:
i. Simple Desertion: the guilty spouse abandons the matrimonial home.
ii. Constructive Desertion: The spouse who is in desertion is the spouse who by his or her conduct expels the other spouse and remains at home.
b) The elements of desertion:
i. Physical separation or defacto separation: This implies bringing co-habitation to an end by severing marital obligations; or
ii. Intention to remain permanently separate or animus deserendi
iii. Absence of the spouse’s consent.
iv. Absence of any justification: There will be no desertion if the spouse who has withdrawn from cohabitation has a good reason for doing so.
Ground 5: Living Apart for Two (2) Years
Where the parties to a marriage have lived apart for a continuous period of at least two years and one of the parties does not object to the marriage being dissolved.
Ground 6: Living Apart for Three (3) Years
However, where the parties to a marriage have lived apart for a continuous period of at least three years, the consent of the other party is not required before such a marriage can be dissolved. Section 15(2)(e) and (f).
References to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.
Ground 7: Disobedience to Order of Restitution of Conjugal Rights
Where a spouse for a period of not less than one year, failed to comply with a court order of restitution of conjugal rights.
Ground 8: Spouse is missing for Seven (7) Years
Where a spouse is missing for such a long time or seven year in such circumstances as to provide reasonable ground for presume he or she is dead or has no reason to believe that the spouse is alive.
a) Commission of sexual offences such as: committed rape, sodomy, or bestiality.
b) Habitual drunkenness or drug addiction: for a period of not less than two years.
c) Frequent convictions and imprisonment for crime.
d) Habitually leaving a spouse without reasonable means of Support.
e) Attempt to murder and assault spouse.
f) Habitual and willful failure to provide court ordered or agreed support for two years.
g) Insanity and unsoundness of mind
Ground 4: Abandoning of Spouse
Where a spouse has abandoned or deserted the other spouse for a continuous period of at least one year .
a) The types of desertion:
i. Simple Desertion: the guilty spouse abandons the matrimonial home.
ii. Constructive Desertion: The spouse who is in desertion is the spouse who by his or her conduct expels the other spouse and remains at home.
b) The elements of desertion:
i. Physical separation or defacto separation: This implies bringing co-habitation to an end by severing marital obligations; or
ii. Intention to remain permanently separate or animus deserendi
iii. Absence of the spouse’s consent.
iv. Absence of any justification: There will be no desertion if the spouse who has withdrawn from cohabitation has a good reason for doing so.
Ground 5: Living Apart for Two (2) Years
Where the parties to a marriage have lived apart for a continuous period of at least two years and one of the parties does not object to the marriage being dissolved.
Ground 6: Living Apart for Three (3) Years
However, where the parties to a marriage have lived apart for a continuous period of at least three years, the consent of the other party is not required before such a marriage can be dissolved. Section 15(2)(e) and (f).
References to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.
Ground 7: Disobedience to Order of Restitution of Conjugal Rights
Where a spouse for a period of not less than one year, failed to comply with a court order of restitution of conjugal rights.
Ground 8: Spouse is missing for Seven (7) Years
Where a spouse is missing for such a long time or seven year in such circumstances as to provide reasonable ground for presume he or she is dead or has no reason to believe that the spouse is alive.
If the spouse seeking for divorce can prove the occurrence of one or more of these eight grounds mentioned above, the High Court will have no choice than to grant the prayer for divorce or dissolution of his or her statutory marriage, as this implies that, the marriage has broken down irretrievably in law.
E. Divorce within Two Years of Marriage
1. Section 30(1) and (2) of the Matrimonial Causes Act provides that a suit for divorce cannot be filed within two years of marriage except if the other spouse is involved in:
a) willful and persistent refusal to consummate the marriage,
b) adultery,
c) commission of rape,
d) sodomy or bestiality
2. Other than the above grounds the offended spouse will need the leave or permission of the court to file for divorce within two years of his or her marriage and the court usually will not grant leave to institute proceedings except on the ground that to refuse to grant the leave would impose exceptional hardship on the offended spouse or that the case is one involving exceptional depravity on the part of the offending spouse.
3. In determining an application for leave to institute proceedings under this section, 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 reconciliation between the parties before the expiration of the period of two years after the date of the marriage.
F. Claim for Damages or Compensation
In divorce proceedings, the party claiming damages must justify his or her claims and also that his or her conduct was not responsible for the damages suffered. Award of costs in divorce proceedings does not depend on who the successful party is. Rather the more important consideration is whose conduct ignites the litigation or the breakdown of the marriage. An erring party should not be encouraged to benefit from his/her self-manufactured fault .
G. Claim for Maintenance
Subject to Section 70 of the Matrimonial Causes Act, the Court may, in proceedings with respect to the maintenance of a party to a marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
Where the appellant was, at that time, an Assistant Chief Administrative Officer on GL.13 which was exactly equivalent mutatis mutandis to that of the respondent who was an Assistant Chief Account on the same salary grade level. It was held that the conclusion of the trial Judge that the claim to maintenance is unsustainable on the ground that the status or standing in life of the appellant is parallel to that of the respondent is flawless and not reproachful .
H. Claim of Joint Ownership of Property
He who asserts must prove. Further assertion or re-assertion does not prove initial assertions. It therefore behoved the appellant to prove that she jointly owned and built the said property with the respondent in order to succeed in claim in paragraph 13 (h) of the Amended Answer and Cross Petition. The burden on her becomes more glaring from the stout denial of the assertion by the respondent. In any case, the trite principle of law and common sense is that, what is alleged without proof can be denied without proof.
I. He who comes to Equity must have his Hands Clean
The Court held that, the appellant's conduct of breeding a child out of wedlock during the subsistence of her marriage with the respondent makes her undeserving of damages. He who comes to equity must have his hands clean. The hands of the appellant in this case are terribly dirty. The law will not assist her to benefit from her own wrongdoing.
J. Decree Absolute
A decree absolute is not and can never be pronounced by a court. It is a process maturity rather than pronouncement.
K. Cost of getting a Divorce
The cost of getting a divorce in Nigeria involves:
(a) Filing Fees: These are the fees to be paid for the filing of a divorce Petition in the Registry of a Court with the competent jurisdiction to hear and determine it. The filing fees are not the same in the 36 States of Nigeria and the Federal Capital Territory (Abuja).
(b) Lawyer's Professional Fees: These are the fees paid to engage a Nigerian Lawyer to prepare the necessary court processes, file them in Court and represent you in the divorce proceedings in Court. There is no fixed professional fee for divorce in Nigeria. The fees depends on the discretion of the Lawyer engaged based on his or her level of experience.
1. Section 30(1) and (2) of the Matrimonial Causes Act provides that a suit for divorce cannot be filed within two years of marriage except if the other spouse is involved in:
a) willful and persistent refusal to consummate the marriage,
b) adultery,
c) commission of rape,
d) sodomy or bestiality
2. Other than the above grounds the offended spouse will need the leave or permission of the court to file for divorce within two years of his or her marriage and the court usually will not grant leave to institute proceedings except on the ground that to refuse to grant the leave would impose exceptional hardship on the offended spouse or that the case is one involving exceptional depravity on the part of the offending spouse.
3. In determining an application for leave to institute proceedings under this section, 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 reconciliation between the parties before the expiration of the period of two years after the date of the marriage.
F. Claim for Damages or Compensation
In divorce proceedings, the party claiming damages must justify his or her claims and also that his or her conduct was not responsible for the damages suffered. Award of costs in divorce proceedings does not depend on who the successful party is. Rather the more important consideration is whose conduct ignites the litigation or the breakdown of the marriage. An erring party should not be encouraged to benefit from his/her self-manufactured fault .
G. Claim for Maintenance
Subject to Section 70 of the Matrimonial Causes Act, the Court may, in proceedings with respect to the maintenance of a party to a marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
Where the appellant was, at that time, an Assistant Chief Administrative Officer on GL.13 which was exactly equivalent mutatis mutandis to that of the respondent who was an Assistant Chief Account on the same salary grade level. It was held that the conclusion of the trial Judge that the claim to maintenance is unsustainable on the ground that the status or standing in life of the appellant is parallel to that of the respondent is flawless and not reproachful .
H. Claim of Joint Ownership of Property
He who asserts must prove. Further assertion or re-assertion does not prove initial assertions. It therefore behoved the appellant to prove that she jointly owned and built the said property with the respondent in order to succeed in claim in paragraph 13 (h) of the Amended Answer and Cross Petition. The burden on her becomes more glaring from the stout denial of the assertion by the respondent. In any case, the trite principle of law and common sense is that, what is alleged without proof can be denied without proof.
I. He who comes to Equity must have his Hands Clean
The Court held that, the appellant's conduct of breeding a child out of wedlock during the subsistence of her marriage with the respondent makes her undeserving of damages. He who comes to equity must have his hands clean. The hands of the appellant in this case are terribly dirty. The law will not assist her to benefit from her own wrongdoing.
J. Decree Absolute
A decree absolute is not and can never be pronounced by a court. It is a process maturity rather than pronouncement.
K. Cost of getting a Divorce
The cost of getting a divorce in Nigeria involves:
(a) Filing Fees: These are the fees to be paid for the filing of a divorce Petition in the Registry of a Court with the competent jurisdiction to hear and determine it. The filing fees are not the same in the 36 States of Nigeria and the Federal Capital Territory (Abuja).
(b) Lawyer's Professional Fees: These are the fees paid to engage a Nigerian Lawyer to prepare the necessary court processes, file them in Court and represent you in the divorce proceedings in Court. There is no fixed professional fee for divorce in Nigeria. The fees depends on the discretion of the Lawyer engaged based on his or her level of experience.
No reasonable man or woman will or would want to divorce his or her spouse, but human nature makes frictions inevitable and some frictions may degenerate or metamorphose into irreconcilable differences that make divorce not just inevitable but reasonable.
There are times when divorce is not a reasonable option considering your children, what you have mutually invested in the marriage and the signs that reconciliation is possible. However, when your marriage becomes injurious or poisonous to your children/child, health, life and destiny and it appears divorce is the only reasonable option.
There has been an increase in the reported cases of spouses killing each other in the news these days in Nigeria. These are times when divorce is becoming a reasonable option, considering the fact that “a living dog is better than a dead lion”.
Lawyers are undertakers of dead marriages, not ruling out the fact that, some dead marriages do resurrect like the dead body of Lazarus or the prophetic dry bones putting on flesh and rising again. However, marital resurrection is a miracle that happens by choice and not by chance.
If you are in a dilemma on divorce think about the finding of a study at the University of Harvard, which observed that, all the members of family suffering from a high level of conflict, for example where there is persistent abuse or alcoholism, benefit from divorce. However, those marriages with low level of conflict gain more by staying together, and the harm to the children is less than that caused by divorce.
CALL or CHAT with me if you need someone to confide in on your dilemma
There has been an increase in the reported cases of spouses killing each other in the news these days in Nigeria. These are times when divorce is becoming a reasonable option, considering the fact that “a living dog is better than a dead lion”.
Lawyers are undertakers of dead marriages, not ruling out the fact that, some dead marriages do resurrect like the dead body of Lazarus or the prophetic dry bones putting on flesh and rising again. However, marital resurrection is a miracle that happens by choice and not by chance.
If you are in a dilemma on divorce think about the finding of a study at the University of Harvard, which observed that, all the members of family suffering from a high level of conflict, for example where there is persistent abuse or alcoholism, benefit from divorce. However, those marriages with low level of conflict gain more by staying together, and the harm to the children is less than that caused by divorce.
CALL or CHAT with me if you need someone to confide in on your dilemma
You can also CALL or CHAT with me @ 08073828487 for further legal illumination on how to resolve or seek for divorce.
Written by Akintunde Esan, Managing Partner/Principal Consultant @ Ase Olodumare Chambers Law Firm, Lagos Nigeria.
You also advised to try Ase Olodumare Chambers Divorce Mediation if:
- you are seeking for an amicable and peaceful separation or divorce.
- you are contemplating filing for divorce or separation in Court.
- you are having issues on child custody.
- you are not formally married but are seeking for amicable and peaceful severance of their marital relationships.
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