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.
What is divorce?
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.
Meaning of grounds for divorce
Grounds for divorce simply means reasons for which a spouse (wife or husband) may apply for dissolution (divorce) of a marriage.
Definition of key terms used in the Matrimonial Causes Act
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.
To which marriages does the Nigerian Matrimonial Causes Act apply?
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.
Section 15 of the Matrimonial Causes Act provides the following grounds for divorce in Nigeria:
1. That the respondent has wilfully and persistently refused to consummate the marriage
The keyphrase under this ground for divorce is ‘consummation of marriage’.
What is consummation of 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.
2. That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
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.
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
This is perhaps the broadest ground for divorce in Nigeria and one of the most used grounds in divorce proceedings as well.
Below are some behaviours that could constitute a ground for divorce under this ground:
- Commission of rape, sodomy, or bestiality by a spouse.
- When a spouse has become a habitual drunkard or a drug addict.
- Where a spouse has been convicted of several crimes and has been sentenced to prison.
- Where the respondent has habitually failed to provide the petitioner with reasonable means of support.
- The repondent has a mental illness when a petition is filed and is unlikely to recover.
- A spouse has been confined in a mental institution for a total of 5 years in aggregate since the marriage.
4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition
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.
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
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.
6. That the parties to the marriage have lived apart for a continuous period of a least three years immediately preceding the presentation of the petition
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.
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 made under the Act
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.
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
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.
Conclusion on the grounds for divorce in Nigeria
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.