A.
Introduction
There
has been an increase in the reported cases of spouses killing each other in the
news these days. These are times when divorce is becoming a reasonable option,
considering the fact that a living dog is better than a dead lion. The focus of
this edition of Akintunde Esan’s Legal Illumination is what the Nigerian Court
will consider before granting a Petition for divorce or dissolution of
statutory marriage in Nigeria.
B.
Divorce
within Two Years of Marriage
The
Court will not grant a divorce Petition to dissolve a marriage that is not up
to two years old[1] except if the offending
spouse is involved in:
a.
willful
and persistent refusal to consummate the marriage,
b.
adultery,
c.
commission
of rape,
d.
sodomy
or bestiality,
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.
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.
C.
The Importance of filing a Verifying Affidavit
On
the importance of filing a Verifying Affidavit, it was held by the Court of
Appeal[2] that:
"Most
instructively, the provisions of Order V Rule 10(1) of the Matrimonial Causes
Rules, 1983 (supra) are to the effect: A petition shall, by an affidavit
written on his petition and sworn to before this petition is filed:
(a) Verify the facts stated in his position of
which he has personal knowledge.
And
(b) Depose as his belief in the truth of every
other fact stated in the petition.
Unfortunately, for the Appellant, he has failed to
strictly comply with the foregoing requirements of the Matrimonial Causes Rules
Order V Rule 10(1) (supra). Consequent whereupon, the entire originating on
which the Appellant's petition is predicated is rendered incompetent, and
liable to be struck out by the Court."
D.
Grounds
for Divorce
By
virtue of Section 15(1) of Matrimonial Causes Act, the Court has
the jurisdiction to make an order dissolving a marriage under the Act (a
statutory marriage) only on the ground that, the marriage has broken down
irretrievably.
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[3]. An occurrence of any of
the following eight situations or facts in the eyes of the Court is a conclusive proof that a
marriage has broken down irretrievably.
1.
Willfully
and persistently refusal to have sexual intercourse[4].
2.
Adultery
and intolerable behaviours to live with[5].
3. Where
a spouse has behaved in such a way that the aggrieved spouse cannot reasonably
be expected to live with the offending 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
4.
Where a spouse has deserted the other spouse for a continuous period of at
least one year.[6]
5.
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.
6.
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[7].
7.
Where your spouse for a period of not less than one year, failed to comply with
a court order of restitution of conjugal rights.
8.
Where your 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
E.
Claim for Damages or Compensation
In
divorce proceedings, the party claiming damages must justify his or her claim
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[8].
F.
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.[9]
G.
Claim of Joint Ownership of Property
He
who asserts must prove. Further assertion or re-assertion does not prove
initial assertions. It therefore behooved 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[10].
H.
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 wrong doing.[11]
I.
Decree Absolute
A
decree absolute is not and can never be pronounced by a court. It is a process
maturity rather than pronouncement.
J.
Domicile
A person's DOMICILE generally speaking means the place
where he has his permanent home and whether he goes east or west, north or
south he would always come back to it. There basically three types
of domicile namely domicile of origin, domicile of choice and matrimonial
domicile.
The facts upon which the court will make the findings
about being domiciled in Nigeria are required to be stated in the petition by
Order 5 rule 3. The court must look at all the facts for the determination of
domicile.
The burden of proving that a domicile has been chosen in
substitution for the domicile of origin is on the person who asserts that the
domicile of origin is lost - the intention must be proved with perfect
clearness[12].
K.
Jurisdiction of Court
Jurisdiction of 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[13].
L.
Conclusion
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, you can contact me (Akintunde Esan, the Legal Adviser Online) for further legal illumination of divorce and child
custody.
[1] Section 30(1) and (2) of the Matrimonial Causes Act
[2]
Okon v. Okon (2016) LPELR-42056(CA)Per SAULAWA, J.C.A. (Pp. 12-13, Paras. F-C)
[3]
Per Ariwoola, J.C.A (P. 24, paras. C-G) LT. Col. Shehu Ibrahim (Rtd) v. Mercy
Ibrahim (2006) LPELR-7670(CA)
[4]
Section 15(2)(a).
[5]
Section 15(2)(b)
[6]
section 15(2)
[7]
Section 15(2)(e) and (f).
[8] Enwezor
v Enwezor & Anor (2012) LPELR-8544(CA)
[9]
Neghenebor Vs Negbenebor (1971) 1 ALL NLR 210 pg. 176 paras A-C. Enwezor v
Enwezor & Anor (supra) Per Mukhtar, J.C.A. (Pp. 22-23, paras. D-E)
[10] Enwezor
v Enwezor & Anor (supra)
[11]
Enwezor v Enwezor & Anor (supra)
[12]
Winans v. A.G. (1904) AC 287 at
290; Bhojwani v. Bhojwani (1995) 7 NWLR (Pt.407) 349. Omotunde v. Omotunde (2001) 9 NWLR
(Pt.718)525
[13] Bhojwani
v Bhojwani (1996) 6 NWLR (pt.457) 661. Omotunde v. Omotunde (2000)
LPELR-10194(CA) Per ONALAJA, J.C.A. (P. 64, paras. D-F)
Click to view:
Click to view:
No comments:
Post a Comment