Family law

Wholistic View Of Divorce In Nigeria- History And Procedure

INTRODUCTION

Marriage denotes an agreement to marry and the act of being married. It refers to the ceremony that brings two individuals together regulated by laws, rules, customs, beliefs, social, moral, religious backgrounds, and attitudes that prescribe the rights and duties of the partners. It must be the result of the free consent of the parties and only one man and one woman are involved to the exclusion of all others. Perhaps its strongest function concerns procreation, the care of children and their education and socialization, and the regulation of lines of descent. Through the ages, marriages have taken a great number of forms. [1]

MARRIAGE: BIBLICAL PERSPECTIVE

Christians often view marriage as a Holy Covenant before God. To them, marriage is a sacrament and not just a contract, it is eternal and a system put in place by God, which also can be traced to St. Paul who compared the marriage of one man and one woman to that of Christ and his church[2] Ephesians 5:23-32. In the Holy Scriptures, it says “Then the man said, “This at last is bone of my bones and flesh of my flesh; she shall be called Woman, because she was taken out of Man. Therefore, a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.” [3]

The Holy Bible states its unshaken position on what a union is. It commands that same-sex marriage is forbidden likewise animal-human marriage. Leviticus 18:22; “Thou shall not lie with mankind as with womankind, it is an abomination”[4] This brings us to check the position of this marriage that is forbidden in the bible in Nigeria;

In Corbett v. Corbett[5]; the court held that the marriage was void ab initio as Ashley was a man upon entering the world who went through sex change and was unequipped for a fulfilling marriage.[6] Likewise, in Nigeria, same-sex marriage is not tolerated[7].

Hence the reason for the enactment of the Same-Sex Marriage Prohibition Act, 2013[8] which prohibits and provides punishment for same-sex marriage in Nigeria.

THE QURAN ON MARRIAGE

The situation is not different in the Islamic religion either. In Islam, the position is not different as they view same-sex marriage as haram (forbidden). In Arabic, the term Nikah is used to represent marriage, it means contract. The Qur’an in 30:21 specifically states; “And among His signs is that He has created for you spouses from among yourselves so that you may live in tranquility with them; and He has created love and mercy between you. Verily, in that are signs for those who reflect.”

MARRIAGE IN NIGERIA

In Nigeria, the two types of marriage that are legally recognized are:

a.     The Statutory Marriage (Monogamous) under the Marriage Act 2004: it is a marriage performed at the registry by one man and one woman to the exclusion of others, it is also done in a licensed palace of worship such as the church, some churches who are not licensed cannot carry out a statutory marriage. The principle legislation governing it are; The Marriage Act; Matrimonial Causes Act Cap M7, Laws of the Federation of Nigeria, 2004; and Matrimonial Causes Rules made pursuant to the Matrimonial Causes Act. The monogamous marriage is a kind of marriage carried out under the statutory marriage in the Nigerian system.  In Nigeria, marriage is considered generally under either statutory (marriage under the act) or customary law. Marriage in Nigeria consisting of one man and one woman is referred to as marriage under the Act. In HYDE V. HYDE [9] A monogamous marriage was defined as a voluntary union for the life of one man and one woman, to the exclusion of all others until divorce or death. This description is equally suitable to describe the Nigerian Monogamous Marriage and that of many other countries.

b. The Matrimonial Causes Act 2004 and the Customary Law Marriage: Customary Marriage is also known as Traditional Marriage. It is the marriage according to the Custom or Native Law of a particular society which could be the custom of the bride’s community or ethnic group where the Customary Marriage is observed. Consent of the parties to the marriage must have been obtained as well as parental consent to make it valid. In the case of OSANWONYI V. OSANWONYI,[10] B and C were married under the Custom and Native law. B paid a dowry of sixty thousand (60,000) to B’s Father without the knowledge and consent of B. The Court held that there was no valid marriage between B and C under the Customary Law. UBEKU V. UBEKU [11] The court held; “according to her she thought the petitioner would make a good husband but there was no question of any love having developed between both of them. The circumstance is that the husband must have paid some money to the parents of the girl in the form of a dowry which must have been handsome for she is a pretty girl and the result of course was that they gave this girl away in marriage to the petitioner”. Thus, before a Customary Marriage is valid, both parties have to agree to marry each other and the parents who will receive the bride price also have to give approval. The polygamous marriage is a kind of marriage practiced mainly under customary and Islamic law in Nigeria. It is the voluntary union for life of one man with one or several wives.” Different religions other than Christianity, perceive the ceremony of marriage differently. The Muslim faith permits a polygamous marriage with a man permitted to marry a maximum of 4 wives at any given time. Under the Nigerian system, there is no universally recognized customary law as there are numerous customary laws, without neglecting the fact that there are multiple ethnic groups, even though, in some areas of Nigeria, there are similar or identical Customs.

Also, According to the Ministry of Interior, There are two types of Marriages that are recognized under the Law, and they are:

a.     Ordinary Marriage: This is a marriage between a Nigerian and a Nigerian.

b.    Special Marriage: While this is a marriage between a Nigerian and a Non-Nigerian or between a Non-Nigerian and a Non-Nigerian in Nigeria.[12]

HISTORICAL BACKGROUND OF MARRIAGE IN NIGERIA

It is widely agreed that the origin of marriage dates well before recorded history, but the earliest recorded evidence of marriage ceremonies uniting one woman and one man dates from about 2350 B.C. in the Far East.[13] After the cession of Lagos to the British Crown in 1861, the first statutory provisions on marriage for the Settlement of Lagos came into existence in 1863. The Marriage Ordinance of that year provided for ‘the granting of licenses for marriages in the Settlement of Lagos and its dependencies. The Registration Ordinance of the same date dealt with the registration and solemnization of marriages within the Settlement of Lagos. In 1872 and 1873 respectively, there was a Divorce Ordinance applicable also to the Settlement. These were repealed in 1877. While Lagos was part of the Colony of the Gold Coast, the Marriage Ordinance 1884 was enacted for that Colony.  In 1886 Lagos was separated from the Gold Coast Colony, but the 1884 Ordinance continued to apply in Lagos.

It is significant that neither the 1884 Ordinance nor its predecessors applied to the then Protectorate of Nigeria. Consequently, outside the Colony of Lagos, it was possible to contract either a customary-law marriage or a Christian marriage in accordance with the rites of the church. But in 1900 part of this gap was filled by the promulgation of the Marriage Proclamation for the Protectorate of Southern Nigeria. Its provisions were similar to those of the 1884 Ordinance. With the merger of Lagos Colony and the Protectorate of Southern Nigeria in 1906, the Marriage Proclamation was repealed and the 1884 Ordinance applied to the whole of the new political and administrative entity. Meanwhile, the Protectorate of Northern Nigeria was left out of these developments. Up to 1907, there was no provision for statutory marriage in that part of Nigeria. But in that year, the defect was made good by the issue of the Marriage Proclamation 1907 for the Northern Protectorate.

This piece of legislation, like its Southern counterpart, was similar to the 1884 Ordinance. The merger of Northern and Southern Nigeria in 1914 made it imperative to streamline the marriage laws in the new political entity, Nigeria. This was achieved through the Marriage Ordinance of 1914, which applied throughout Nigeria. It repealed the Marriage Ordinance 1908, the Marriage Proclamation 1907, and the Foreign Marriage Ordinance 1913. With minor amendments, this statute still continues to regulate the celebration of monogamous marriages in Nigeria. The 1914 statute is substantially similar to the 1884 Ordinance and based on the same principles of monogamy as the English- law of marriage.

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.

DIVORCE

Divorce is the legal dissolution of a marriage by a court or other competent body. According to the vocabulary dictionary,[14] “A divorce is a formal ending of a marriage. It’s more permanent than a separation and involves a legal process. If you get a divorce, that means the marriage is officially over”.

Given that divorce is the formal dissolution of the marriage according to the relevant law, divorce with respect to statutory marriages in Nigeria is the dissolution of marriage according to the Matrimonial Causes Act. Divorce should not be confused with annulment, which declares the marriage null and void, or with legal separation or de jure segregation.[15]

POSITION OF DIVORCE IN OTHER JURISDICTIONS

The only countries that do not allow divorce are the Philippines and Vatican City, an ecclesiastical state, which has no procedure for divorce. Countries that recently legalized divorce are Italy (1970), Portugal (1975), Brazil (1977), Spain (1981), Argentina (1987), Paraguay (1991), Chile (2004)7, and Malta (2011).

Nigerian laws are largely inherited from England which includes the divorce laws that are operative in Nigeria. The primary source of the divorce laws of Nigeria prior to 1970 was the English Matrimonial Causes Act of 1965 which was extensively based on the matrimonial offence theory. In England, the Matrimonial offence theory, as it were, originated from the old ecclesiastical courts which had the exclusive competence with regard to the dissolution of marriages and the granting of the decree of divorce. In the old practice, a decree of divorce indeed relieved parties of the duty to cohabit, but it did not give room for any of the parties to remarry.

While the offence theory remained in operation, the Matrimonial Causes Act of 1857 introduced secular divorce which extended the powers of the court and empowered them to grant decrees of dissolution of marriage, nullity, and separation. 

GROUNDS FOR DIVORCE

Up to 1970, Nigerian law on Divorce was based on the matrimonial offenses theory which required that marriage may only be resolved when a spouse committed a matrimonial offense like cruelty, desertion, or adultery. In UBEKU V. UBEKU[16] Sowemimo, J held thus; ”… in any case the marriage has broken down completely…in the circumstance of this case I would grant the petition of the husband and dissolve the marriage on the ground of cruelty…”. This was the consequence of the application of English Divorce laws in Nigeria. Under the Matrimonial Causes Act, there is only a single ground upon which a marriage can be dissolved, which is that the marriage has broken down irretrievably, proof of one of these grounds is enough to dissolve a marriage. See  IBRAHIM V. IBRAHIM (2007) NWLR(PT 1054) 383.  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:

  1. 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.
  2. 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. OKORO V.OKORO (2015) ALL FWLR PT572 PG1249@1793 PAR.G-H.
  3. 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 it 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. See DAMUNAK V. DAMUNAK (2004) 8 NWLR (Pt. 874) 151, See also, LYNDA IFEDILI ONOCHIE v. FELIX OGECHUKWU ONOCHIE,[17] where JUDE O. ONWUEGBUZIE held thus; ..”On the second factual allegation of the petitioner that since their marriage, the respondent has behaved in such a way that she is not expected to live with him. In an allegation of intolerable conduct under Section 15(2) C of the Matrimonial Causes Act, the petitioner can only succeed if he or she is able to establish to the satisfaction of the court a conduct of the Respondent which is grave and weighty as to make cohabitation virtually Impossible.”
  4. 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.
  5. 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.
  6. 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. OMOTUNDE v. OMOTUNDE (2001) 9 NWLR (PT 718) 525 P, PARAS 62-63 PER ADEKEYE, J.C.A it was held as follows; “… the section has the factor of absence of fault element characteristic of other matrimonial offence… the law behind the section that is 15(2)(1), as far as the living apart is concerned, it is not interested in right or wrong, guilt or innocence of the parties. Once the parties have lived apart, the court is bound to grant the decree….”
  7. 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 rights made under the Marriage Causes Act.
  8. 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 the Evidence Act 2011.[18]
  9. When the above reasons have been successfully proved by the Petitioner, the Court can make an order for a decree nisi, which is often contained in the judgment of the Court. The order automatically becomes absolute within a period of 3 months in the absence of any appeal from the affected party. Thus, after the decree nisi has become absolute, there is no right to appeal the decision of the Court. More so, where any of the parties died before the 3 months elapsed, it shall not become absolute.

Therefore, the marriage is completely dissolved when a decree absolute is made by the Court. The effect of dissolving a statutory marriage is that a party to the marriage can marry again as if the marriage had been resolved by death.

It must be emphasized that a petition for dissolution of marriage will not succeed if the petitioner has condoned any of the above facts.

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.

It is worth mentioning that the petition for the dissolution of marriage cannot be brought where the marriage is under 2 (two) years unless the leave of the Court is sought.[19] However, the leave is not automatic as the petitioner must establish exceptional hardship and exceptional depravity on his/her part.

Despite the 2 (two) years rule exception, there are instances where the rule would not apply by virtue of section 30 (3)[20]; They include:

  1. Refusal to grant the leave would impose exceptional depravity on the part of the other party to the marriage that is, willful and persistent refusal to consummate the marriage;
  2. Refusal to grant the leave would impose exceptional hardship on the applicant, Adultery since the marriage and intolerability on the part of the Petitioner; and
  3. Commission of rape, sodomy, or bestiality.
  4. Proceedings for a decree of dissolution of marriage by way of cross-petition.
RATE OF DIVORCE IN NIGERIA

In 2016, official statistics suggested that the dissolution of marriage in Nigeria was uncommon. According to the National Bureau of Statistics, just 0.2% of men and 0.3% of women had legally dissolved their marriage. However, there is no doubt that the above statistical data is inapplicable in present times. According to a report in 2018, separation rates in Nigeria recorded a 14 percent increase. The present statistics mirror a rather negative trend.[21]

In a report in 2018, a total of 3,000 divorce cases were recorded in Badagry, Lagos. Also, in a 2019 report titled ‘Deciphering the high rate of Divorce in Nigeria’, Kano state alone had over 1 million registered divorcees.[22]

More so, in a news report, it was learned that a visit to the Social Development Secretariat, Federal Capital Development Authority (FCDA) revealed that a total of 20 to 30 cases of divorce are reported at one of the offices daily.[23]

Furthermore, records at the Federal Capital Territory (FCT) High Court showed that over 2,000 divorce cases were filed between the year 2019 and February 2020, with an average of 30 cases being entertained every day, even as the Court is trying hard to reconcile couples through arbitration panels. Findings further revealed that the figure is higher at the Customary Courts, the Alkali, and the Sharia Customary Courts within the FCT.[24]

 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.[25]

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DIVORCE’S PETITION:

The divorce process typically begins by way of petition,[26] 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, the 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.

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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 refuses 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.

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 fails 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 have the 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.

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JUDGMENT/DECREES

When divorce hearings have been concluded, the next stage is judgment. 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 judgment and issuance of decree nisi, parties are still not allowed to immediately marry anyone else until after 90 days. The essence of the 90-day period is to give room for any intervention and appeal. 

Notwithstanding anything contained in this Part, where a decree nisi has been made in proceedings for a decree of dissolution of marriage, the court may, at any time before the decree becomes absolute, upon the application of either of the parties to the marriage, rescind the decree on the ground that the parties to the marriage have become reconciled. Where a decree nisi has been made but has not become absolute, the court by which the decree was made may, on the application of a party to the proceedings, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the decree and, if it thinks fit, order that the proceedings be reheard.[27]

If after 90 days neither party appeals the judgment, the case will be deemed completely closed, and the registrar of the court shall issue a final certificate known as a decree absolute.[28] Where a decree of dissolution of marriage under this Act has become absolute, a party to the marriage may marry again as if the marriage had been dissolved by death.[29]

CONCLUSION

At this juncture, it is essential to point out that divorce may be bad and may be good depending on the situation. In situations of assault, domestic violence, and dangerous spouses it has been a relief to many abusive marriages.

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 or mere words, it is usually contentious, therefore, the process must follow or abide by the strict procedures of the court and the rules governing the proceedings.  Because of the contentious nature of proving facts, many innocent parties have lost everything, including custody of children and wealth. Parties to it must be emotionally and mentally prepared for the outcome their decisions will make. In divorce, it is not as simple as just signing the divorce papers as is commonly used in movies and the Western world. In Nigeria, the laws must be followed and it is important to know the law and its applicability of same. It must be noted that Divorce involving children must be treated with care as it is a delicate one.


[1] https://www.britannica.com/topic/marriage accessed on September 9, 2023

[2] The Holy Bible Genesis 2:23-24 King James Version Ephesians 5:23-32

[3] The Holy Bible Genesis 2:23-24 King James Version Genesis 2:23-24

[4] The Holy Bible King James Version

[5] [1970] 2 All ER 33

[6] [1970] 2 All E.R. 33, at 34 (Divorce Ct.)

[7]https://isochukwu.com/2017/12/31/family-law-1-1-generalintroduction/#:~:text=Black’s%20law%20dictionary%20defines%20marriage,one%20man%20and%20one%20woman%E2%80%9D > accessed on October 16, 2022

[8] Same-Sex Marriage Prohibition Act, 2013

[9] The International and Comparative Law Quarterly

Vol. 25, No. 3 (Jul., 1976), pp. 475-508

[10]  Osanwoyi v Osanwoyi (1972) 10 SC 1

[11] Policy and practicing law reports 3PLR Abel Kprogidi Ubeku v. Agnes Owughorua Ubeku

[12] https://ecitibiz.interior.gov.ng/marriage/overview

[13]https://www.inceco.com/en/news-insights/family-matrimonial-history-marriage#:~:text=It%20is%20widely%20agreed%20that,B.C.%20in%20the%20Far%20East. Accessed on 10-02-2020

[14] https://www.vocabulary.com/dictionary/divorce

[15] https://www.thoughtco.com/de-jure-segregation-definition-4692595

[16]  Policy and practicing law reports 3PLR Abel Kprogidi Ubeku v. Agnes Owughorua Ubeku

[17]HIGH COURT OF FCT PET/531/2020

[18] Section 15(2) of the Act.

[19] Matrimonial Causes Act section 30(1)

[20] Matrimonial Causes Act

[21]  https://www.vanguardngr.com/2020/10/the-rate-of-divorce-in-nigeria-latest-statistics/

[22] ttps://www.blueprint.ng/4000-divorce-cases-in-2-months-which-way-family-values/

[23] Ibid.

[24] https://www.sunnewsonline.com/worries-as-courts-get-more-divorce-cases/

[25] 32(1) MCA & 31(2) MCA

[26]  Section 54(1) MCA

[27] MCA 60 & 61

[28] MCA Section 59(1)

[29] MCA section 33

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About Babayemi Olaniyan Esq, LLM

Written by Babayemi Olaniyan Esq, LLM- Partner, Michael Abu Esq, LL.M- Associate, Aderonke Afolabi Esq- Associate, of Lehi Attorneys Plot 1085, Joseph Gomwalk Way, Gudu Abuja info@lehiattorneys.org yemiolaniyan00@gmail.com