Divorce is gradually becoming a more acceptable concept in Nigeria today. The legal landscape surrounding divorce in Nigeria is multifaceted and influenced by cultural, religious, and legal factors. Understanding the legality of divorce in Nigeria is crucial for those navigating this
challenging terrain and that is what will be discussed in this blog post.
What is Divorce?
Divorce is a legal process that formally ends a marriage or marital union between two individuals. This process involves the dissolution of the marital relationship, typically through a court order. Divorce can address various issues such as the division of assets, child custody, visitation rights, and financial support. It is a complex and emotionally charged process that affects the individuals and families involved.
Is divorce always the answer to conflict resolution in marriages?
From a legal standpoint, divorce is not always the only option for conflict resolution in marriages. There are methods legally available that couples can explore before or during Divorce proceedings that couples can explore to resolve conflicts, improve communication, and potentially salvage the marriage.
Rather than instituting a Petition for dissolution of marriage, a party to a marriage can institute a petition for a decree of restitution of conjugal rights 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. Conjugal rights simply refer to the mutual rights and privileges between couples in a marriage. Such rights include mutual rights of companionship, support which may be financial or emotional, sexual obligations, property rights, and the like.
In addition to the above, a party to a marriage can institute a petition for a decree of Judicial Separation. Judicial separation is a legal process that allows married couples to live apart without ending their marriage or the status, rights, and obligations of the parties to the marriage. It is a court order that recognizes the couple’s decision to separate while still maintaining the legal status of being married. Unlike divorce, judicial separation does not
dissolve the marriage, and the couple remains legally married albeit with the legal right to stop cohabitation. This affords the couple time apart which may be used to explore options such as counseling aimed at resolving issues within the marriage.
Aside from the above, civil protection orders are available for victims of domestic abuse. These orders include but are not limited to child custody and support orders, and restraining orders.
What are the legal grounds to file for a divorce in Nigeria?
While there is a common belief that divorce is a seamless process, it is not a walk in the park. As much as it seems easy for couples to bring forth divorce cases to court, the Herculean task is to prove facts necessary for the court of Law to grant a divorce. Realistically, a couple cannot divorce within two years without the leave of court and the court shall not grant a divorce within 2 years except the refusal to grant the leave would impose exceptional hardship or depravity on a party to the marriage. What that means is that the intended parties first have to ask the court “Can I divorce?”. Acts that may cause exceptional hardship or depravity are rape, sodomy, bestiality, adultery, unsound mind at the time of the marriage, incapability of consummating the marriage, prohibited degrees of consanguinity and affinity, and fraud or duress in obtaining consent amongst others.
The ground for dissolution of marriage is that the marriage has BROKEN DOWN IRRETRIEVABLY and in proving the same, a party seeking divorce must prove the existence of certain facts such as:
● Refusal to consummate the marriage.
● Adultery and Intolerability.
● A party exhibiting behaviour that you can’t be reasonably expected to live with such a party.
Such behaviours include physical, psychological, sexual, emotional, and financial abuse amongst others. It should also be noted that although some behaviours may seem to be less severe than others, the phrase “little drops of water melt away the stone” is a great reference to the fact that the court recognizes that even though “small acts” don’t stand enough ground for divorce, the accumulation of these acts do.
● Desertion for one year immediately preceding the presentation of the divorce.
● Living apart for at least two years and the other party does not object to the divorce.
● Living apart for a continuous period of three (3) years immediately preceding the presentation of the divorce.
● Failure to comply with restitution of conjugal rights for at least one year.
● Absence for such time as to provide grounds for presumption of death.
Does Divorce Affect Children Negatively?:
Where there are children of the marriage in a divorce proceeding, the courts of law will not make an absolute decree unless, by order, has declared that it is satisfied that proper arrangements in all the circumstances have been made for the welfare, custody, guardianship, and, where appropriate, the advancement and education of those children. The courts always regard the interests of those children as the paramount consideration;
as such, Divorce in itself is not aimed at affecting children negatively but rather aims to ensure that the children of the marriage are properly taken care of.
Here are some key laws in Nigeria aimed at protecting individuals from abuse:
1. Violence Against Persons (Prohibition) Act: This law criminalizes various forms of violence, including physical, sexual, psychological, and economic violence. It provides legal protection and support for victims of abuse.
2. Child Rights Act: This act seeks to protect the rights of children in Nigeria, including protection from abuse, exploitation, and harmful practices. It sets out the responsibilities of the government, parents, and society in ensuring the well-being of children.
3. Protection Against Domestic Violence Law of Lagos State, 2007 (PADVL): This is a Law to Provide Protection Against Domestic Violence and for Connected Purposes of Lagos (2007).
4. Criminal Code Act: The Criminal Code Act contains provisions related to offenses such as assault, rape, and other forms of violence. These provisions are aimed at punishing perpetrators of abuse and providing justice for victims.
These laws, among others, play a crucial role in safeguarding individuals from various forms of abuse in Nigeria. It’s important to familiarize oneself with these laws and seek proper legal assistance when needed. For example; Section 15(2) (c) of the Matrimonial Causes Act, talks about adultery and it says “where the respondent has persistently and willfully committed adultery and the petitioner finds it intolerable to live with that person.”
This means if you condone an act and your partner doesn’t do it again, you cannot divorce based on that act once it’s proven that you condoned it.
Stigmatisation or Normalizing?
Under the Law, marriage is a contract and like every other contract, you should be allowed to pull out. Legal safeguards are in place to ensure that divorce is not undertaken lightly and that parties have considered reconciliation or counseling before proceeding with a divorce. Divorce is granted only when the Marriage has broken down irretrievably and, in such circumstances, Divorce should be normalized. The legal system also plays a crucial role in regulating divorce to prevent its abuse and is aimed at protecting the institution of marriage. Legally, you cannot wrong your partner and file for a divorce. For example: A spouse who cheated on their partner can’t bring a case to the court and ask for a divorce.
In conclusion, divorce is not a problem but rather, it is the solution to a problem i.e. an irretrievably broken-down marriage.