LIABILITY OF A CO-RESPONDENT IN A DIVORCE CASE
In a petition for a decree of divorce a spouse is alleged to have committed adultery with a specified person under section 32(1) Matrimonial Causes Act, 2004, prescribes that the co-respondent must be made a party to the proceeding. The question now lies to the fact that what is the liability of the co-respondent in the petition.
‘Adultery has been defined as consensual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage’ in Ibeabuchi V. Ibeabuchi (2016) LPELR-41268(CA
Marriage is a sacred institution recognized and respected by law, hence, the law ensures that its sanctity is preserved and in the sad event that its sanctity is violated by a third party, there exists some remedy in damages against such third party in favour of the aggrieved party. This remedy is only available to a person who contracted a monogamous marriage under the Marriage Act.
In the Northern part of Nigeria where the Penal Code Act applies and in States which have adopted the Sharia law, adultery is a criminal offence. However, in the Southern part of Nigeria where the criminal code Act applies, adultery is not a criminal offence.
Adultery is a matrimonial wrong which can entitle a person to the dissolution of the marriage, where the petitioner shows that since the marriage the petitioner has committed adultery and the petitioner finds it intolerable to live with the respondent.
When adultery is alleged, it is essential that the person with whom the adultery was committed is included as a party to the petition for dissolution of marriage; such a person ought to be made a Co-respondent in order for the aggrieved petitioner to be able to claim damages against the person. The relief of the aggrieved spouse against the spouse guilty of adultery is dissolution of the marriage and the relief against the person with whom the spouse committed the adultery is damages. Damages cannot be recovered against the spouse who committed adultery in accordance to the Section 31(1) of the Matrimonial Causes Act.
It should be noted that an allegation of adultery cannot be based on suspicion, emotion and induced speculation. It must be borne out by facts and evidence. Of course, the law recognizes that it is only in rare cases that direct evidence of adultery can be given, so there are other ways of proving an allegation of adultery, adultery would therefore be inferred in the following circumstances:
· Evidence of disposition and opportunity for sexual intercourse with a person other than a spouse
· The birth of a child outside one’s home during the subsistence of a valid marriage has been held to be proof of adultery.
· General cohabitation: where cohabitation is established between the respondent and a third party, adultery would be presumed between them.
· Confession and Admission of Adultery
· Entry of Register of Birth/ birth of a child: the courts have held that entry of birth which omits the name of the child’s father or simply gives a name other than the husband’s name amounts to admission of adultery. The birth of a child outside wedlock during the subsistence of a valid marriage also raises the presumption of adultery.
· Frequent Visits to The Hotels: frequent visits of a husband to a hotel raise a presumption of adultery.
· Venereal disease: if the petitioner is able to establish that the respondent had contacted a venereal disease from a third party during the subsistence of the marriage, it raises the presumption of adultery.
The right to seek dissolution of marriage and damages from a third party on the ground of adultery is extinguished if the petitioner is shown to have condoned the adultery and if an action for dissolution of the marriage and damages is not commenced within three years of the commission of the adultery. The fact that the petitioner condoned one act or acts of adultery with one particular person does not amount to condonation of adultery with another person or with several other persons.
In a case where a respondent stated that ‘I did not allow this to affect my relationship with him. I only advised him as his wife to be more careful so that we can have a peaceful home.’ Alabi V. Alabi (2007) LPELR-8203(CA), the court held her to have condoned her husband’s adultery but acknowledged the difficulties a spouse stuck with an unfaithful partner faces and the inherent challenges it poses when the court continued .
The rationale behind awarding damages to an aggrieved spouse has been that damages on grounds of adultery are not compensatory for the loss which the petitioner has suffered, and consideration maybe given to such matters as damage done to the petitioner by the blow to his honour, the hurt to his family life and injury to his feelings. Thus, in the assessment of damages to be awarded in favour of an aggrieved petitioner, the following factors are considered:
· The value of the adulterous spouse to the claimant/petitioner;
· Injury to the claimant/petitioner’s feelings;
· the co-respondent’s means and conduct; and
· The co-respondent’s knowledge that the adulterous spouse is married
On this note, the act of adultery in the Northern part of the country is a criminal act. But in the southern part of the country is not a criminal act, rather the co-respondent will pay damages after is liable for the action of adultery.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080