A. Introduction
Divorce is the legal dissolution of a marriage and there are different perspectives to the grounds for dissolving a marriage such as the religious, cultural, jurisprudential, sociological, statutory, trendy, mystical and pragmatic perspectives. Take for instance in the Christian faith, adultery is the only recognised ground for divorce.
This edition of Akintunde Esan's legal illumination is focusing on the legal grounds for getting a divorce in Nigeria as provided in the Matrimonial Causes Act, which is the Law regulating the grounds for the filing and processing of a divorce in Nigeria.
B. Grounds for Divorce of a Customary Marriage
In Nigeria, couples have the choice of having a customary marriage or a statutory marriage. A customary marriage is a marriage contracted under the native law and custom of an ethnic community in Nigeria. A statutory marriage is a marriage contracted under the Marriage Act.
In Nigeria, couples have the choice of having a customary marriage or a statutory marriage. A customary marriage is a marriage contracted under the native law and custom of an ethnic community in Nigeria. A statutory marriage is a marriage contracted under the Marriage Act.
There are no codified grounds for divorce under native laws in Nigeria, thus, a customary or traditional marriage can be divorced or dissolved on arbitrary grounds.
The only authority in Nigeria that has the jurisdiction (power) to grant a divorce of a statutory marriage is the High Court, while the Customary Court has the jurisdiction to grant the divorce of a traditional or customary marriage.
C. The Eight (8) Grounds for the Dissolution of a Statutory Marriage 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. If the spouse seeking the divorce can prove the occurrence of one or more of these grounds, 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.
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:
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).
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. If the spouse seeking the divorce can prove the occurrence of one or more of these grounds, 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.
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."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).
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.
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 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 for further legal illumination on resolving or seeking for a divorce.
Written by Akintunde Esan, Managing Partner/Principal Consultant @ Ase Olodumare Chambers Law Firm, Lagos Nigeria.
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