How to file a divorce in Nigeria by Barrister Saheed Akinola

It is better to lose your marriage and save your life than to lose your life while you are trying to save your marriage at all costs.

The incidence of death and casualties resulting from domestic and marital violence is becoming a daily occurrence in Nigeria. This is a result of social and cultural stigmatization attached to divorce, which is based on erroneous beliefs that divorcees are not responsible. Many people being abused and brutalized in marriage prefer to die in a broken marriage than bear the stigma.

It is good to try to make your marriage work, but not at the expense of your life and happiness. It is not our intention in this article to treat the causes of divorce or how to prevent it-these are treated in our other articles.

As an expert in family law and inheritance succession, the experience has shown that not every marriage can survive cracks; some are better advised to call it to quit when the relationship becomes life-threatening.

This is to enlighten those who have explored all alternative dispute resolutions to restore peace into their marriages but to no avail; the steps to take legally in Nigeria to seek divorce in court. Many people do not know that long separation does not translate to the dissolution of statutory marriages. It is to be noted that since the knot of statutory marriage is done by law, it can only be undone/nullified/dissolved by the same law given force to by the court of law.

A petitioner may approach the court when he/she realizes that the marriage has broken down irretrievably and he is resolved that there is no going back, having tried to resolve the differences between each other without any success. The petition is usually filed on behalf of the petitioner by their legal representative after taking a proper brief from his client.

Before a petition could be prepared and filed in court, the legal practitioner for the petitioner would have resolved the preliminary questions through an interview session he had with the petitioner. Some of the preliminary issues are:

Is the matter matured to be brought to court without the leave of the court or is it a matter for which the leave of the court must be sought and obtained?
What are the grounds on the basis of which the petition is to be filed?

III. What are the facts to be proved to establish the only ground of divorce, which is that the marriage has broken down irretrievably as set out in Section 15 of the Act

Dissolution of a statutory marriage

The Two years Rule

In order to discourage rushing into divorce immediately after marriage because of minor disagreement, the Matrimonial Causes Act lays down the procedure for the decree of dissolution of marriage. It emphasizes that dissolution of marriage shall not be instituted within two years after the date of the marriage, except by leave of court (Section 30(1) MCA, Law of the Federation 2004)

This prohibition is to prevent couples from abandoning the marriage once they discovered marital problems.

However, there are exceptions which can render the prohibition inapplicable and still make it expedient to file for divorce within two years of marriage. The exceptions are:

a) Willful and persistent refusal to consummate the marriage; or
b) Adultery and the petitioner finds it intolerable to live with the respondent, or
c) The respondent has committed rape, sodomy or bestiality, or
d) The institution of proceedings for a decree of dissolution of marriage by way of cross proceedings

Ground for Divorce and the breakdown principle

The sole ground upon which a petition for divorce could be hinged is that the marriage has broken down irretrievably, as established by Section 15(1) of MCA. Once the marriage has broken down irretrievably, any of the parties could file a petition for divorce.

In order to establish this singular ground to institute an action in court for divorce, the petitioner must establish one or more of the eight facts listed in section 15 (2) of MCA. The facts which will enable the court to conclude that the marriage has broken down irretrievably are as enumerated in section 15 (2) of MCA as follows:

a) That the respondent has willingly and persistently refused to consummate the marriage.
b) That since the marriage, the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
c) That since the marriage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the respondent.
d) That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
e) That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the Respondent does not object to the decree of dissolution is granted.
f) That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
g) The other party to the marriage has failed to comply with a decree of restitution of conjugal right made under the Marriage Causes Act for a period not less than one year.
h) That the other party to the marriage has been absent from the petitioner for such time and in such circumstances has to provide reasonable grounds for presuming that he/ she is dead.

Dissolution of marriage decree will only be granted by the court after evidence by the petitioner has been received by the court in support of the petition. Where the court is satisfied with the existence of any fact in respect of which relief is sought, it shall go ahead and grant the appropriate order.

A decree of dissolution will be granted by the court in two stages where the petitioner is able to prove one or more of the facts in Section 15(2) enumerated above; first, a decree nisi and this order becomes absolute at the expiration of three months where there is no appeal against the judgment.

In conclusion, divorce involves sensitive issues which must be handled with care, especially where children are. The court that orders the dissolution of marriage can also order maintenance of any of the parties or the children. The court can equally give order in respect of sharing of property.

For further enquiries or clarification, contact barrister Saheed Akinola, Choiceland Solicitors, Ajah, Lagos State, +2348032493960, 09153249324