Marriage is a formal contract between two consenting parties (man and woman). Generally, every contract is subject to termination or determination. Thus marriage as a contract is no exception. This article explores the legal way by which a marriage can be dissolved.
There are three types of Marriage in Nigeria i.e. Islamic Marriage, Customary Marriage and Statutory Marriage. It is pertinent to state that the kind of marriage contracteddetermines the form of divorce. This article focuses on divorce under statutory marriage.It presents the reader, with other available options when divorce is not practicable.
The article will be analyzed under the following headings;
Dissolution of marriage/divorce
Claim for damages where adultery is committed
Procedure for divorce
Divorce (legally called dissolution of marriage) is a formal process by which a marriage contracted under the law is terminated thereby absolving parties of marital obligations. Dissolution of marriage is one of the several reliefs available to a couple seeking judicial intervention. Matrimonial reliefs are the remedies available to a party approaching the court. Generally, the reliefs include;
Nullity of a Voidable Marriage: This is where the marriage is not valid from the beginning but it is subject to one of the party to set it aside. The grounds includes, pregnancy before marriage, insanity, inability to consummate/impotency, venereal disease etc. The Petitioner must approach the court within twelve months of marriage and show lack of knowledge about a particular ground.
The incapacitated spouse/the suffering couple cannot present the Petition. The document filed in court containing the grounds is called ‘Petition’. The person presenting it is called ‘Petitioner’ while the other party responding is called ‘Respondent’.
Nullity of Void Marriage: This is a fundamental defect that rendered the marriage void from the beginning. It provides no legal consequence i.e. ‘there is no marriage in the eye of the law’. The circumstances include, non-compliance with law, if parties are related by blood/marriage, lack of consent, under age and if either of the party is lawfully married before attempting to contract another marriage.
Judicial Separation: This is where the court put parties apart and relieves them of marital obligations. Here the marriage is subsisting, so none of the parties cancontract another marriage. The husband is liable for maintenance, and in case of death; the spouse alive can share in intestacy. The order is discharged where parties voluntarily resumed cohabitation (this means living together) or make an application for cohabitation to the court.
Restitution of Conjugal Rights: This is where the Petitioner makes application to the court, requesting for restoration of conjugal rights (i.e. rights and privileges arising from marriage, e.g. love, companionship, affection, comfort and sexual relations). The petitioner must show readiness to cohabit, with evidence of written request to the respondent.
Jactitation of Marriage: This is where a person parades herself/himself as the wife/husband of another when in reality they are not married. The Petitioner can approach the court and seek for an order to stop the respondent from doing the wrong act. A divorced wife may continue to use the husband’s name. However, she is prohibited from using the name to commit fraud.
Dissolution of Marriage (Divorce): This is the focus of this article. Read below for comprehensive analysis.
DISSOLUTION OF MARRIAGE/DIVORCE
Divorce is regulated by law. It is a meticulous judicial procedure which the Petitionermust follow. There is only one ground by which a Petitioner can approach the court for divorce. The sole ground is that “the marriage has broken down irretrievably” (Section 15(1)(a) Matrimonial Causes Act). The duty of the Petitioner is to prove to the reasonable satisfaction of the court that the marriage has broken down and cannot be retrieved. The Petitioner must adduce supportive facts to convince the court. Some of the supportive facts are provided by law (Section 15 (2) (a)-(h) Matrimonial Causes Act). The supportive facts include;
Persistent refusal to consummate by the Respondent: This is when the Respondent repeatedly refused to have sexual intercourse with the Petitioner. This supportive fact is not to be pleaded if the couple had at least one sexual intercourse after marriage. It is only pleaded where the Respondent is yet to have intercourse with the Petitioner after the marriage. The Petitioner must show repeated willful refusal to consummate from the Respondent.
Respondent Committed Adultery and the Petitioner find it Intolerable: Adultery means a situation where a married spouse have willful sexual intercourse with a third party. The Petitioner must adduce evidence to convince the court that adultery was committed. The court can infer adultery in the following circumstances; (i) admission and confession (ii) Respondent’s cohabitation with third party (iii) pregnancy (iv) frequent visit to hotels/club (v) contacting infectious disease. In order to succeed, the Petitioner must show intolerability (i.e.The adultery was unbearable).
Respondent’s Unreasonable Behavior: This is where the Respondent acts in a weird and irresponsible manner,thereby making it difficult for the Petitioner to continue cohabitation.Irresponsible behaviors include: rape, sodomy, bestiality, refusal to pay maintenance, insanity, incarceration above three years etc., in which case parties have lived apart for at least six months.
Desertion: This is where one spouse separates with the intention of permanently bringing the cohabitation to an end without the other party’s consent. The Petitioner can present a Petition for dissolution.
Living apart for two years without objection: In this situation, the Respondent objection is crucial; because once it is shown that the Respondent objected then the plea must fail.
Living apart for three years: Once it is established that the parties have lived apart for a continuous period of three years, the Petitioner is likely to succeed because further evidence may not be necessary.
Failure to Comply With Decree of Restitution of Marriage. This is where there is a subsisting court order, directing the respondent to resume cohabitation and there was non-compliance. The court will grant dissolution.
Presumption of Death: A person shown not to have been heard of, for a period of seven years, is presumed death by law (Section 164 Evidence Act 2011). Once it is established that the other party is not alive, the court will grant dissolution.
Note: At least one of the facts stated above i.e. (a)-(h) should be pleaded, in addition to the ground that the ‘marriage has broken down irretrievably’ before a Petition for dissolution of marriage can be granted.
CLAIM FOR DAMAGES WHERE ADULTERY IS COMMITTED
Under the Matrimonial Causes Act, the Petitioner can demand damages from the third party who committed adultery with the Respondent and join the third party as a Co-respondent. However, the case of adultery cannot be heard after three years from the date of commission. A man who commits adultery with another man’s wife can be sued for damages. Also a woman who commits adultery with another woman’s husband can be sued for damages.
It is called differently depending on the jurisdiction, whether it is called alimony, spousal support, aliment or spouse maintenance; the meaning is the same. It is a provision either by the husband for the wife or the wife for the husband after divorce. The husband and wife may agree on the amount and the manner of payment and summit it to the court for approval or the couple may allow the court to decide on the amount to be paid and the manner of payment. The main idea for alimony is to provide financial support for the spouse with low income. In awarding alimony, the court takes into consideration the duration of the marriage, number and age of children, quantum of income and the age of the benefiting spouse.
STEP ONE: The marriage must have broken down irretrievably.
STEP TWO: Try to settle the problem by reporting to family members. In case of cruelty or physical abuse report the matter to the nearest police station.
STEP THREE: Contact a lawyer or a Non-Governmental Organization or speak to a closed trusted friend/family, or read article online about divorce.
STEP FOUR: Decide the appropriate matrimonial relief, consider all the available options. Divorce should be the last option.
STEP FIVE: File a Petition in court. At this stage the service of a lawyer is needed. A marriage conducted in Lagos Marriage Registry can be separated in any State High Court in Nigeria. The resident of the man becomes that of the woman immediately marriage is conducted. If the man is not living in Nigeria the woman may have little issue.
STEP FIVE: Attend reconciliation meetings (usually organized by the court). If reconciliation fails proceed to trial and present all the necessary evidence and call necessary witness(es). In a situation where the marriage certificate cannot be found, call at least two persons that witnessed the marriage to testify.
STEP SIX: Wait for the court to deliver judgment. It may take months or years.
STEP SEVEN: If the court refused to give an order for dissolution of marriage (divorce), you will have to go back and continue with the marriage. In this case you may gather additional evidence and return to court or settle the differences and continue with the marriage.
STEP EIGHT: If thecourt grants your prayer for divorce, you are free like a bird. At this juncture, cohabitation will be terminated, move out to a place of your choice and live a happy life.
STEP NINE: If alimony was awarded in your favor, relax and receive the money. Alimony will stop when the person receiving it begins cohabitation with a lover or enter into a new marriage. If alimony was awarded against you, then get ready to begin payment before the court sends you to prison.
STEP TEN: Do not rush into another marriage without understanding the person. If you are single reading this article, then you are the luckiest person on earth because you will avoid the temptation of rushing into marriage for the purpose of wealth, physical appearance and material considerations. Money may finish, beauty and handsomeness will fade away, but a good character will remain till the last breath.
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OKPIBERNARD ADAAFU (OBA) ESQ( LL.B, B.L, ACIArb, MICMC) is Associate at Kanu G. Agabi SAN (CON) & Associate, Abuja.