FACTORS TO PROVE FOR EXCEPTIONAL HARDSHIP UNDER THE MATRIMONIAL CAUSES ACT
In accordance to the provision of Section 30(3) of the Matrimonial Causes Act, 2004, it provides for the exception of 2-years rule, which is “exceptional Hardship or Exceptional Depravity”. The court have applied the test of exceptional hardship in a number of decided cases in Majekodunmi V, Majekodunmi (1966) NMLR 191, in the fact of the case, that the respondent had sexual intercourse with the petitioner only on one occasion since the celebration of the marriage, and the respondent had always driven her away each time to approach him. It was held that the respondent action amounted to exceptional hardship on the petitioner.
In this case, there are 14 exceptions which the law allows for if your circumstance falls within one of those exceptions, then you are able to file for divorce within the first 2 years of your marriage the exceptions are listed below for ease and amounted to exceptional hardship
1. Where either the husband or wife was lawfully married to another person at the time of the marriage
2. Where the requirements for the proper solemnization of the marriage were not followed
3. Where the consent of either of the couple was obtained by duress or fraud
4 Where there was a mistake as to the identity of the other party or the nature of the ceremony performed.
5. Where one party was mentally incapable of understanding the nature of the marriage contract
6. Where either of the parties is not of marriageable age. It should be noted here that the Nigerian Constitution does not establish a minimum age of marriage. The Child Rights Act, which was passed in 2003 sets the age of marriage at 18 years-old. However, only 23 of Nigeria's 36 states have adopted this act. As a result, in some areas of the country the minimum age of marriage can be as low as 12 years-old
7. Where both parties are within what is known as the prohibited degrees of consanguinity and affinity. The prohibited degrees of consanguinity and affinity refer to a list of relationships which are not allowed by law to marry e.g brother and sister, uncle and niece etc.
8. Where at the time of the marriage either party was incapable of consummating it e.g the husband is suffering from some form of erectile dysfunction
9. Where at the time of the marriage either party is of unsound mind, a mental defective, or subject to recurrent attacks of insanity or epilepsy
10. Where at the time of the marriage either party is suffering from a venereal disease in a communicable form. This would include all sexually transmitted diseases and infections
11. Where at the time of the marriage the wife is pregnant by a person other than her husband
12. Where the other person has refused to consummate the marriage
13. Where the other party has committed adultery
14. Where the other party has committed acts or rape sodomy or bestiality.
All these exceptions can be liked the provision of Section 15 and 16 of the matrimonial Causes act, 2004.
Finally, the Law gives the judge the discretion to be able to grant a divorce within the first 2 years of marriage; however the person requesting for the divorce must specifically request for leave of court. The court will exercise this discretion only in circumstances where refusal to grant the leave would impose exceptional hardship on the applicant or the case is one involving exceptional depravity on the part of the other party.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080