GROUNDS FOR GRANTING DIVORCE IN NIGERIA

              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.  

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: 

"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. 

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. 

D.  Conclusion

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.

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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CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

NOTICE ! NOTICE !! NOTICE !!!

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.

• For more information on Ase Olodumare Chambers Divorce Mediation Initiative click on: BREAKING NEWS ! DIVORCE MEDIATION IN NIGERIA  

WHAT THE COURT WILL CONSIDER BEFORE GRANTING PETITION FOR DIVORCE IN NIGERIA

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)

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CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

MARRIAGE:THE LAW ON DIVORCE IN NIGERIA

CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA

A. Introduction

 

This edition of Akintunde Esan's Legal Illumination is written with the plight of parents battling with the issue of child custody in mind. Who will the Court grant the custody a child or the children after going through the pains and trauma of a divorce or a separation.

Thus, the focus of this legal illumination is the  factors  the Court will consider in awarding custody to one of the parents whether married or unmarried; or married but separated; and whether the child custody is sought for with or without a divorce.

B. Who is a Child

 

The African Charter on the Rights and Welfare of the Child defined a child as “every human being below the age of eighteen years”.The United Nation’s Convention on the Rights of the Child of 1989 defines a child as a person below the age of eighteen years except in the law applicable to the child, the age of majority is attained earlier.  Nigeria ratified the CRC in 1991 and domesticated it in 2003. 

The Constitution of the Federal Republic of Nigeria does not define who a child is. However , the Child Rights Act which has been domesticated in some States  defines a child as “a person under the age of eighteen years” and defines the “Age of Maturity” as the age at which a person attains the age of eighteen years.

 

C. The Paramount Consideration  

The paramount consideration in award of child custody is the interest of the children. 

D. The General Considerations

 

(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father. 

(2) In regard to the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father and the rights and authority of mother and father shall be equal and exercisable by either without the other. 

(3) Nor is there necessarily any rule that mother has a paramount claim as against other relations, at any rate where the father is alive and support the application of those relations.

(4) The welfare of the infant although the first and paramount consideration is not the sole consideration and the conduct of the parties is a matter to be taken into account. 

(5) The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery make it desirable. 

(6) All the circumstances must be considered. 

(7) The fact and advantages of brotherhood and sisterhood must also be considered when there is more than one child of the family and it is proposed to give custody of one child to one person and another to a different person. 

8) There is settled rule that a child of tender years should remain in the custody of the mother, but obviously the care and supervision that a mother who is not out at work can give to little children is an important factor. 

(9) In dealing with the questions of custody or access the court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct. 

(10) The wishes of an unimpeachable parent stand first. 

11) Where both parents appear to be equal to the task of maintaining the children and are ready to give affection and proper guidance to the children. It was held that the interest of the male child who is 14 years old will best be served by granting custody to the father who will naturally be able to provide strong guidance for the teenage boy. 

12) Regarding the female child, where both parents are eminently qualified, able and anxious to give affection and proper guidance to their child for whom they are responsible; they are likely to co-operate and swallow their vanity in the interest of the welfare of the child because of the affection they have for the child. There can be no real objection in this circumstance for an order for joint custody.

13) In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child.

Application for Child Custody without filing for Divorce 

Apart from seeking for child custody in a divorce proceedings in Nigeria, application for child custody can also be made to the Court with the requisite jurisdiction without filing for divorce.

Application for child custody without filing for divorce is legally required to be made to one of the following:

(a)   The High Court; or

(b)   The Magistrate Court ; or

(c)   The Customary Court 

The appropriate Court to apply to depends on whether the parents are married or unmarried and the nature as well as the status of the marriage, if they are married.

Conclusion

Where two elephants battle, the innocent grasses on the battle field  are unconsciously destroyed. As you fight the battle for the custody of your child or childern think of their future. In case  you need more legal illumination on the custody of your child or children in Nigeria, you may contact Akintunde Esan, the writer this legal illumination or Ase Olodumare Chambers.

Authorities:

• Williams v. Williams (1987) NWLR(Pt. 54) 66
• Uzochukwu v. Uzochukwu (2014)LPELR-24139(CA) 
• Re A, an infant (1959) C.L.. 950(1959) Times March 25th C.A.
• Re L (infants) (1962) 3 All ER. 
• Wakeham v. Wakeham (1954) 1 AllER 434 CA at 435. 
• Re B. (an infant) (1962) 2 All ER872
•  W v. Wand C (1968) 3 All ER 408 
• Re O. (infants) (1971) Ch 748(1971) 2 All ER 744 CA at 746, 752. 
• Re Thain, Thain v. Taylor (1926)Ch 676
• Mckee v. Mckee (1951) AC 352,366;(1951) 1 All ER. 942, 949 PC 
•  Okwueze v. Okwueze (1989) NWLR(Pt.109) 321

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MARRIAGE- THE LAW ON DIVORCE IN NIGERIA