Human Rights

Matrimonial Reliefs To Seek When Divorce Is Not An Option

Marriage is a very beautiful thing. It is a union between a man and a woman; in the case of marriage under the Act, it is a union between one man and one woman or woman in the case of Customary marriage or Islamic Marriage.

God’s intention for marriage is basically for companionship, assistance, and fruitfulness.

However, the perversity and wickedness in the world have distorted the plans of the creator of marriage. Some people get married and lose their peace, security, and purpose. Some persons get assaulted by their partners. Some persons even die because of marriage.

The law has made provisions for matrimonial relief in the event that the marriage becomes unbearable for a partner or either of the partner no longer finds the marriage suiting and serving its purpose.

There are five matrimonial reliefs provided for under the Matrimonial Causes Act. There are:

  1. Nullity of a void marriage.
  2. Nullity of a voidable marriage.
  3. Decree for dissolution of marriage.
  4. Decree for separation.
  5. Jactitation of marriage. 
  1. NULLITY OF A VOID MARRIAGE

The nullity of a void marriage is primarily concerned with the validity of the creation of marriage. Here, the Petitioner (the one who files a Petition in court) contends that there was no marriage ab initio and urges the court, to annul and legally dissolve what appears to be a marriage.

This kind of petition is brought when the petitioner feels that there is/are fundamental defects in the marriage that should nullify the marriage and render it void.

A void marriage like its name implies is void and of no effect. It is seen as no marriage at all. When a court makes a decree for void marriage, it has a retrospective effect. It purports that from the first day of the marriage, there was no marriage at all.

A void marriage produces no legal consequence. By Section 3 of the Matrimonial Causes Act, a marriage is said to be void ab initio if any of the following facts are available:

  1. If either of the parties is, at the time of the marriage lawfully married to someone else.
  2. If the parties are within the prohibited degrees of consanguine or subject to Section 4 of the Act of affinity.
  3. If the marriage did not satisfy the requirements of the law of the place where the marriage took place.
  4. If there was a lack of consent of either of the parties. This includes cases where the consent of a party was obtained by fraud or duress o the party is mistaken as to the identity of the other person or as to the nature of the ceremony performed, or the person is mentally incapable of understanding the nature of the marriage contract.
  5. If either of the parties has not attained marriageable age.  
  • NULLITY OF A VOIDABLE MARRIAGE

This kind of matrimonial relief suffers some defects but can be tolerated by the petitioner. In voidable marriage, the marriage remains valid until declared void by the court. Section 5 of the Matrimonial Cause Act provides for several grounds under which a voidable marriage can be voided.

  1. Inability to consummate the marriage.
  2. Unsoundness of mind, mental defect, insanity, or epilepsy at the time of the marriage.
  3. Where a party was at the time of the marriage suffering from a venereal disease in a communicable form.
  4. Where the wife was pregnant for another person at the time of marriage.

The above are genuine reasons why a person may seek a decree of nullity of a voidable marriage. The proof of any of the above facts would bring the marriage to an end. But, unlike the case of nullity of marriage on the grounds of a void marriage, here, until the party at the receiving end of the defects complains, the marriage would remain valid. Every person including the court is precluded from intervening even in serious cases of inability to consummate the marriage.  

JUDICIAL SEPARATION

The decree of judicial separation merely puts the parties apart and relieves the petitioner from the obligation to cohabit with the Respondent during the life of the separation order. This is granted to enable the party to renew the marriage individually to determine whether to continue with the marriage or to finally bury it.

This is not a dissolution of marriage. It is the suspension of conjugal rights. If a man has sexual intercourse with his separated wife during this period without her consent, he can be charged with rape.  

The Petitioner can even claim for maintenance during this period. Unlike Dissolution, separation leaves a window open for the parties to make up.

A petition for judicial separation may be based upon all the facts upon which a decree of dissolution of marriage can be made.

The effect of the decree of judicial separation is that it does not affect the degree of validity or subsistence of the marriage. All that it does is stop Cohabitation. Neither party can remarry while the order lasts or he/she would be prosecuted for bigamy.

Where a party dies intestate as to any property while a decree of judicial separation is in operation, that property shall devolve as if that party had survived the other party to the marriage.

The window of marriage during the decree of separation is open for reconciliation by both parties.

The order of judicial separation can be discharged when either party applies for an order discharge.

RESTITUTION OF CONJUGAL RIGHTS

Conjugal right is the right that a husband and wife offer each other because they are married.

There are rights and privileges arising from the marriage relationship, including the mutual rights of companionship and sexual relation. (Black’s Law Dictionary. CP.CA . P.343).

Section 47 of the Matrimonial Causes Act also provides:

  1. A petition under this Act by a party to a marriage for a decree of restitution of Conjugal rights may be based on the ground that the parties to the marriage, whether or not they have at any time Cohabited, are not cohabiting and that, without just cause or excuse the Party against whom the decree is sought refuses to cohabit with and render conjugal rights to the Petitioner.

This relief is available to a deserted spouse or any spouse that has neglected or refused to perform his/her duties to their spouses.

JACITITATION OF MARRIAGE

This relief is available to a party who asserts that he/she is not married to the respondent or has been divorced from the respondent but that the respondent is wrongfully and persistently boasting or asserting that the petitioner is married to the respondent.

The decree serves as an injunction or restrains a party parading his/herself as the spouse of the petitioner from further doing so.

DISSOLUTION OF MARRIAGE

This is the highest of all matrimonial relief. This is the “oga kpatakpata” of it all. Here the Petitioner is saying that he/she wants the marriage dead. This is otherwise known as divorce in the general parlance.

The party is seeking for the intervention of the Court to a marriage that is not working and has broken down irretrievably.. The ground for this dissolution is contained in Section 15(1) of the Act.

A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably.

The fundamental reason for this petition is that the marriage has broken down irretrievably.

Section 15(2) provides conditions that will warrant a marriage to have broken down irretrievably. There are:

  1. That the respondent has willfully and persistently refused to consummate the marriage.
  2. That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
  3. That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
  4. That the respondent has deserted the petitioner for a common period of at least one year immediately preceding the presentation of the petition.
  5. 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 a decree being granted.
  6. 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.
  7. That the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights.
  8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as the provide reasonable grounds for presuming that he or she is dead.

For clarity’s sake, Section 16(1) (a-g) makes a list of such behaviour that the petitioner cannot reasonably be expected to live with.

One of the things a petitioner can bring as a behaviour that the party are not reasonably expected to live with and that the respondent –Has committed rape, sodomy, bestiality, habitual drunkenness, cruelty, attempted murder on the petitioner, convicted of murder or manslaughter and –The list is not exhaustive.

Cruelty for emphasis’ sake has been defined by Black’s Law Dictionary as the intentional and malicious infliction of mental or physical suffering on a living creature especially a human being, abusive treatment or outrage.

As it relates to Matrimonial Causes, it refers to physical or emotional suffering that goes to the heart of the marriage.

In Conclusion, these matrimonial reliefs are put in place by law to enable one opt for any relief that suit with the matrimonial wrong he/she is suffering. The law will suffer no wrong without a remedy.

However, it is in the Petitioner’s best interest to consult a Lawyerlawyeride him/her on the true steps to take. Because there are provisions for ADR and options for Reconciliation.

PS: A Petitioner: One who brings a claim in court asking for relief.

A Respondent: One whom the claim is brought against and who is expected to answer the petition.

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About Chineye Ekom Idim

Chinenye Ekom Idim(Mrs) is a Legal Practitioner, Self Esteem Coach, and Children's Teacher She is a conscientious person and a strategist with excellent skills and a keen interest in child psychology, teenagers' development, mental well-being, and Self Esteem. She devotes her time to educating people on their legal rights and helps in giving people's establishment a legal face. She has authored two E-books. "Say No Anyway and Staying Mentally Safe" She currently works at Nsikak Ikpeme & Associates. A law firm located in Calabar, Cross River, Nigeria. She can be reached via nwenyimfelly@gmail.com or 08145919197