Viewpoint

May 29, 2023

Divorce process in Nigeria

Divorce process in Nigeria

… how to get a divorce in Nigeria

By Olusola Jegede

The divorce process in Nigeria is governed by the Matrimonial Causes Act, which outlines the legal framework for marriage dissolution in the country. Divorce is a complex and emotional process that involves several stages and legal requirements. In this explanation, I will provide an overview of the divorce process in Nigeria, highlighting the key steps involved and the legal considerations that parties should be aware of.

FACTORS TO BE CONSIDERED IN DIVORCE PROCEEDINGS IN NIGERIA

To process a divorce in Nigeria, the following important factors must be duly considered:

  • Ground for Divorce
  • Two years rule
  • Parties to the Divorce
  • Divorce’s Petition
  • Service of the Divorce Petition
  • Answer to the Petition
  • Custody & Settlement
  • Hearing/ Trial
  • Judgement/ Decrees

The factors stated above will be discussed briefly in this article.

  • GROUND FOR DIVORCE:

Under the Matrimonial Causes Act, there is only single ground upon which a marriage can be dissolved, which is that the marriage has broken down irretrievably. This ground can be proved by any of the eight facts or reasons, which are stated in Section 15(2) of the Matrimonial Causes Act, L.F.N. 2004 as follows:

  • a) That the respondent has willingly and persistently refused to consummate the marriage. For this fact to be relied upon, the petitioner must prove that the respondent has failed to have sexual intercourse with him or her, but where it is proved that sexual intercourse occurred at least one time after the marriage, the marriage will be deemed to have been consummated, and the petitioner cannot rely on this ground for divorce anymore. Therefore, this fact cannot be used or relied upon when either party to the marriage suddenly withdraws from engaging in sexual intercourse having done the same before.
  • b) That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. For this fact to hold water in court, the petitioner must prove that not only does the other party commit adultery but he/she finds it unbearable to live with such infidelity, and most importantly, the party who committed the adultery must be joined in the suit as a co-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. This fact is wide enough, and it is allowed at the discretion of the court. Because includes various reasons such as cruelty, assault & battery against a husband or wife, and drunkenness among others, it is one of the most used facts petitioners usually rely upon in divorce proceedings
  • d) That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition. The desertion means that the respondent has abandoned the matrimonial home without any justification for at least one year.
  • e) That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent does not object to the decree of dissolution being granted. Where the respondent objects, the dissolution will not happen if this fact is relied upon.
  • 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. This is the simplest of all facts or reasons for proving that a marriage has broken down irretrievably.
  • g) That the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal right made under the Marriage Causes Act.
  • 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. If someone has been missing for seven years, the person can be presumed to be dead in accordance with Evidence Act 2011.
  • TWO YEARS RULE:

The Matrimonial Causes Act stipulates that no person can file a divorce petition for any marriage below two years except with the leave of court.  This is popularly known as the two-year rule provided for under Section 30 of (the Act) which states that subject to this section proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by the leave of court”. Therefore, to institute a divorce petition for a marriage of less than two years, the permission of the court must be sought by filing a motion ex-parte along with a copy of the proposed petition for divorce. This leave (permission) will only be granted if in the opinion of the judge not granting such a leave will cause an exceptional hardship to a party to the marriage. Consequently, where a marriage is not up to two years and there is nothing to show there is an exceptional hardship to be suffered by either party to the marriage, it is advised that a divorce case should not be brought forward yet.

  • PARTIES TO THE DIVORCE:

The parties to a divorce process are usually husband and wife, who are designated as a Petitioner and a Respondent. However, there are situations where a third party can be joined to the case, and this third party can be addressed as a co-respondent. This situation arises when one of the parties to the marriage is alleging his/her spouse commits adultery with the co-respondent. The law simply mandates that where an allegation of adultery has been brought against any third party, such a person must be joined as a co-respondent to the suit so he can be afforded an opportunity to defend himself or herself.

  • DIVORCE’S PETITION:

The divorce process typically begins with one party, known as the petitioner, filing a petition for divorce at the appropriate High Court in the state where either spouse resides or where the marriage took place. The petition outlines the ground and reason(s) or fact(s)for the divorce. It also provides details about the marriage, including the names of the parties, date of marriage, and any children from the marriage. The petitioner must also attach relevant documents, such as the marriage certificate and any evidence supporting the facts relied upon to prove the ground for the divorce.

  • SERVICE OF THE DIVORCE PETITION & OTHER PROCESSES:

After filing the divorce petition, the petition and other accompanying documents must be served by a court bailiff to the other spouse sued in the petition (the respondent). This is usually done by personal service. The respondent then has a specified period, usually within 28 days to respond to the petition. Where the respondent is refusing to accept the service of the petition on him, the petitioner through his/her lawyer can file an application in court seeking the permission of the judge to serve by substituted means, which may include pasting of the petition at the conspicuous parts of the house or sending same to the respondent by electronic means.

  • ANSWERS TO THE PETITION:

Upon receiving the petition, the respondent has the opportunity to respond by filing a repones, which may include an answer and/or counter-petition. The answer may contest the reasons alleged by the petitioner for the divorce or seek additional relief.

  • CUSTODY & SETTLEMENT

Custody is an important issue that must be considered in a divorce. A court hearing a divorce petition is mandated under the law to make orders with respect to the children of the marriage, the court must make orders on who will have custody of the children after the divorce and how maintenance and school fees for such children are to be paid. Also, the court must make an order pertaining to the family property especially if there is anyone jointly built or owned by parties. If a divorce case involves a matter of custody of children and settlement of properties, the court as a matter of law, must encourage and order parties to amicably resolve such issues first and report back to the court, in a procedure known as a compulsory conference. It is when the party failed to agree on anything at the conference that the Judge will decide such issues based on evidence adduced at the hearing and the best interest of the children.

  • HEARING/TRIAL:

After the compulsory conference if applicable or after the respondent has filed his/her answers, a divorce petition will be set down for hearing. At this stage, both parties shall present their case and evidence to support their claims before the judge. The lawyers of both sides will opportunity to cross-examine both parties and other witnesses called by them to testify in case there is any. The judge considers the evidence presented by parties and makes a determination on the issues in dispute, such as child custody, division of assets, alimony, and the dissolution of the marriage itself. It is important to note that where the respondent is not interested in contesting the divorce at all or any reliefs sought by the petitioner, he may choose not to testify in the case at all.

  • JUDGMENT/DECREES

When divorce hearings have been concluded, the next stage is judgement. The court’s decision is usually based on relevant laws and the best interests of the children, if children are involved. If a divorce petition has been proved successfully in court, the judge will order the dissolution of the marriage and immediately issue a decree nisi. With the judgement and issuance of decree nisi, parties are still not allowed to immediately marry anyone else until after 90 days. The essence of this 90 days is to give room for any intervention and appeal. If after 90 days neither party appeal the judgement, the case will be deemed completely closed, and the registrar of the court shall issue a final certificate known as a decree absolute.

CONCLUSION

The divorce process in Nigeria has many technicalities involved. The service of a legal practitioner is required to initiate or respond to a divorce petition. Divorce in Nigeria is not granted by a way of right, and it is usually contentious, therefore, the process must follow or abide by the strict procedures of the court and the rules governing the proceedings.

Jegede of Resolution Law Firm wrote in via [email protected]