Procedure For Divorce In Nigeria

By Sam Okolie

For our purposes here, I will be concentrating on annulment of
marriages contracted under the Matrimonial Causes Act Cap M7 L.F.N
2004. (Colloquially referred to as Court Marriage or Statutory
Marriage) marriage under the Act means monogamous marriage – that
is a marriage between one man and one woman, excluding all other
forms of marriages, like polygamous marriage or marriage contracted
under the various native laws and customs of the various tribes in
Nigeria.

Also for a marriage to constitute a marriage under the Act, the
marriage must have a marriage certificate issued by a government
approved marriage registry or a licensed place of worship.

The mere fact that a marriage was celebrated in church does not
constitute a marriage under the Act, as such a marriage must comply
with the requirements of the Act to be a statutory marriage.

A church marriage without more is a customary marriage and will
not have the benefits of a statutory marriage except the church is
licensed to celebrate marriage-see Nwangwu v. Ubani (1997) 10
N.W.L.R Pt 526 p559

REASONS FOR DIVORCE

There are a plethora of factors which makes marriages breakdown.
Some of these factors will be classified under two heading: (1)
Poverty and (2) Adultery.

Poverty

With respect to poverty, money is the life-wire of every
marriage; it brings comfort and stability to marriages. The absence
of money could make either of the partners to resort to gambling,
excessive intake of alcohol and drugs and crime, which might lead
to the collapse of the marriage.

Adultery

With respect to Adultery, nothing kills a marriage faster than
an adulterous partner. Adultery is cancerous to marriage.

GROUNDS FOR DIVORCE

There are different procedures and forms available to a
petitioner who seeks to annul his or her marriage under the
Act.

They include (a) Dissolution of marriage, (b) Nullity of a
voidable marriage (c) Nullity of a void marriage (d) Judicial
separation (e) Restitution of conjugal right and (f) Jactitation of
marriage.

However, the most ubiquities form of petition under the Act is
the Petition for Decree of Dissolution of marriage. It is the most
widely litigated petition. In fact, out of the entire petition that
pour into the registry of the High Court, nearly 95 percent of them
is for decree of dissolution of marriage; while the remaining 5
percent is shared among the other forms of petition.

It is on this basis that the decree for dissolution of marriage
would be used as a ground for divorce.

Under section 15 (1) of the Matrimonial Causes Act, the sole
ground for dissolution of marriage under the Act is that the
marriage has broken down irretrievable – Ekrebe vs. Ekrebe (1999) 3
N W L R (P+596) 594.

By this the Act has created only one ground for divorce, yet the
facts which may lead to a marriage breaking down irretrievably are
provided for in section 15(2) (a)-(h) of the Act once the
petitioner has satisfied the court of one or more of the following
facts:

(a) That the respondent has and willfully and persistently
refused to consummate the marriage;

(b) Adultery and intolerable to live with the respondent;

(c) Behave in such a way that the petitioner cannot reasonably
be expected to live with the respondent;

(d) That the respondent 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
period of at least 2 years immediately preceding the presentation
of the petition and the respondent does not object to a decree been
granted;

(f) Parties have lived apart for a continuous period of at least
3 years immediately preceding the presentation of the petition;

(g) Failure to comply with a decree of dissolution of conjugal
right made under the Act

(h) Presumption of death.

The petitioner must prove at least one of the facts contained in
Section 15(2) (a) (h) of the Act before he can succeed. Where the
petitioner fails to so prove, the petition for dissolution will be
dismissed.

The mere fact that the petitioner alleges that the respondent is
a witch, or is diabolic or the mere accusation that the respondent
is not a good person will not be enough reason to dissolve a
marriage.

JURISDICTION

Jurisdiction here simply means the court that has the power to
entertain divorce proceedings. Section 2 of the Matrimonial Causes
Act states that a person may institute an action under this Act in
the High Court of any state of the federation or the High Court of
the Federal Capital Territory. Thus, it is the High court of the 36
states of the federation and the Federal Capital Territory that has
jurisdiction over divorce proceedings.

If divorce proceeding is brought before any court aside the High
Court of a state, the proceeding is a nullity ab initio. A simply
analogy will suffice here. If Mr A married Mrs A in a marriage
registry in Port Harcourt, Rivers State, in the year 2010 and in
2015 Mr A and Mrs A moved to Lagos after their marriage but later
Mrs A was seduced by one rich politician and Mr. A wants a divorce.
Where would Mr. A, go to institute the proceeding for divorce? The
law is that he may go back to Port Harcourt in Rivers State or he
may go institute the divorce proceeding in Lagos where he is
currently residing or that he can go to any state of the
federations and the proceedings will be competent.

However, consider a situation where Mr A while still residing in
Lagos and his wife, Mrs A is also residing in Lagos decided to take
the matter to the High Court of Kano State so that the proceedings
will be inconvenient and difficult for Mrs A. Though the proceeding
is still valid and competent, but the principle of ‘Forum
Convenience’ will be brought to play in the issue of Jurisdiction
so as to ameliorate the issue of Inconvenience.

For the court to have Jurisdiction for a petition for
dissolution of Marriage, the petition must be accompanied by the
following documents:

(a) A verifying Affidavit to verify the fact stated in the
petition

(b) A notice of the petition in appropriate form i.e. forms 8, 9
or 10

(c) A form of acknowledgement of service by the respondent
and;

(d) A copy of the Marriage certificate

It should also be noted that, there are instances where the
marriage certificate has been lost, destroyed or one of the spouse
has refused to give up the marriage certificate as he or she will
be unwilling to submit to divorce proceedings. The proper step
under this scenario is for the petitioner to apply for the
certified true copy (CTC) of the marriage certificate at the
appropriate marriage registry.

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