Nigerian Law Forum
The grounds for divorce in Nigeria can be found in the Nigerian Matrimonial Causes Act 1970 under sections 15 and 16. If you are a legal practitioner from another jurisdiction, you can refer to the said Act. The aim of this post is to explain the grounds for divorce in Nigeria in simple terms for the benefit of non-lawyers or students of law.
Dissolution of marriage
Divorce, also called dissolution of marriage, is the separation of husband and wife by a court order (decree). After a divorce, either of the parties can marry again. Marrying someone else while there is still an existing statutory marriage constitutes a crime in Nigeria.
Grounds for divorce simply means reasons for which a spouse (wife or husband) may apply for dissolution (divorce) of a marriage.
Below are some relevant key terms used under the Matrimonial Causes Act and their meanings:
Petition: the petition simply means the application for divorce.
Petitioner: a petitioner is a person who has made an application for divorce.
Respondent: a respondent is the opposite of the petitioner, ie the wife or husband of the person who has made an application for divorce.
Decree: this means an order of the court dissolving the marriage.
Dissolution: dissolution of marriage simply means a divorce.
The grounds for divorce in Nigeria under the Matrimonial Causes Act apply to statutory marriages. The Act does not apply to traditional/customary marriages. For difference between statutory marriage and customary marriage, see this post.
The keyphrase under this ground for divorce is 'consummation of marriage'.
Persistent refusal to have a child in a Marriage
Consummation of marriage simply means to have a child in the marriage.
Thus where the husband or wife has persistently refused to have a child in the marriage, an application may be made to court for a dissolution of the marriage.
Note that the Act uses the word 'persistently'. This means that mere refusal to have a child at some point in the marriage might not necessarily constitute a ground for divorce. For instance, a wife's refusal to have a child before completion of a one year postgraduate course would not necessarily be a ground for divorce in Nigeria. The refusal must have been persistent enough to constitute a ground for divorce.
This means that an application for divorce may be made where one of the couple has had sexual intercourse with someone other than the their spouse. In such circumstance, the person making the application for divorce would need to provide evidence in court to prove that the other party cheated.
This is perhaps the broadest ground for divorce in Nigeria and one of the most used grounds in divorce proceedings as well.
For instance, where a spouse abandons his/her spouse and travels abroad for a year, a petition for divorce may be made to the court.
The Matrimonial Causes Act uses the phrase 'immediately before the presentation of the petition'. This means that where an abandonment occured two years ago for instance, a petition cannot be made under this ground if the spouse has since returned.
This means an application for divorce may be made where the spouses have lived in separate households for at least two years and the respondent does not object to the divorce.
Similar to ground 4 above, the living apart must have taken place immediately before the petition. Thus if the spouses have started living together before the petition is filed, then the court would not dissolve the marriage.
This ground is similar to ground five above. The differences are that the period is three years and it does not matter whether the respondent objects to the divorce or not.
Conjugal rights are rights and privileges that typically pertain to marriages. Sexual intercourse, maintenance, etc are examples. A decree for restitution of conjugal right is an order made by the court requiring a party to comply with such rights, privileges, or obligations.
Where the respondent has not been seen for seven years, he/she could be presumed dead and the marriage would be dissolved by the court.
The above grounds for divorce in Nigeria could be combined where one or more grounds have occured in a marriage. For instance where a spouse who frequently abuses his/her spouse has also committed adultery, grounds 2 and 3 above may be presented in the petition.
The above explanation of grounds for divorce in Nigeria are intended to be used as a reference only. If you are a respondent in a divorce proceeding or you want to file a divorce petition, it is advisable to consult a lawyer for professional advice. This is because statutes, like the Matrimonial Causes Act, are usually interpreted with cases and lawyers usually have thorough knowledge of case law.
Michael Akerele, LLB, MICL, BL
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