WHAT ARE THE BASIC PROCEDURE FOR DISSOLUTION OF MARRIAGE
The Nigerian Court regard divorce as a delicate affair, it also supports the institution by giving consideration, from time to time, to the possibility of a reconciliation of the parties to the marriage unless the ground is of a nature that it would not be appropriate to do so.
A divorce of customary marriage may be as fast as two months in customary court, especially where there are actually no contentions. But the divorce of statutory marriage in High Court might never be under six months even without any contention. In reality, a highly contentious divorce case could take over two years to be concluded.
Grounds for divorce
A marriage celebrated under the Act (Statutory Marriage) can only be dissolved on the ground that the marriage has broken down irretrievably. Subject to the provision of Section 15 (2) (a) and (h) of the Matrimonial Causes Act, there are eight classes of the irretrievable breakdowns. The eight classes shall be restated as follows:
1. That the Respondent has willfully and persistently refused to consummate the marriage. This happens where a party has deliberately refused to have sexual intercourse with the other party despite several requests. The Petitioner must satisfy the Court that consummation of the marriage has not taken place before the commencement of the hearing of the Petition.
2. That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent
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.
4. That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
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. The parties to a marriage shall be treated as living apart unless they are living with each other in the same household.
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. The parties to a marriage shall be treated as living apart unless they are living with each other in the same household.
7. That the other party to the marriage has, for not less than one year, failed to comply with a decree or restitution of conjugal rights made under his Act;
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. Another fact every prospective divorce petitioner often seeks to know is the duration of the process. Under the Evidence Act, a person must be absent for 7 years for such person to be presumed dead - Section 164(1) Evidence Act, 2011, Section 16(2)(a) Matrimonial Causes Act. A decree made according to the petition shall be in the form of a decree of dissolution of marriage by reason of presumption of death.
Where the above-stated grounds have been proved by the Petitioner to contribute to the irretrievable breakdown of the marriage, he or she is entitled to a decree of divorce.
THE TWO-YEAR RULE:
To prevent abuse of the sanctity of marriage, Section 30 of the Matrimonial Causes Act provides that proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the Court. The court will grant permission to institute a divorce where exceptional circumstances, which would cause hardship on the applicant or when the case is one involving exceptional depravity on the other party to the marriage.
Section 54(1) MCA provides that every matrimonial cause or divorce process in Nigeria shall be commenced by a Petition. The party commencing the Petition is called the PETITIONER, while the other party to the marriage is called RESPONDENT.
- Filing a Petition:
The divorce process starts with filing a petition on behalf of the petitioner by his legal representative. The only Court with the jurisdiction is the High Court of any state of the Federation. However, where the High Court of a State makes an order for maintenance, the order can be enforced in a Court of summary jurisdiction in a summary manner.
The petition states one's case, who you got married to, facts constituting the ground for the divorce, year of marriage, what you want from the divorce, and any evidence to back it up. Once the document has been filled, it is given a file number. The petition is served on the Respondent, who is to reply to the petition within a stipulated time frame.
- Hearing of The Petition
Once the Respondent has replied to the petition, the matter would be set down for hearing of the petition. During the hearing, the duration and nature of evidence to be deduced will be determined by whether or not the petition is contentious and what the Petitioner intends to take out of the marriage (example, damages, maintenance, custody of children, property, etc). Any witness relied upon by any of the parties shall be called upon to corroborate any evidence.
- Judgment, Decree and Divorce Certificate:
This is the final stage of the divorce process. Here, the court is satisfied by the evidence adduced by the petitioner to prove the fact constituting the ground of divorce, a judgment of court is issued dissolving the marriage with the DECREE NISI. This decree does not end the marriage but confirms that the court is satisfied that the marriage has broken down irretrievably and that the Petitioner is entitled to a divorce. A party to any matrimonial proceedings may appeal against the Decree Nisi before it becomes ABSOLUTE. An appeal against a Decree Nisi must be filed within 3 months after its issuance. However, if the party fails to appeal against a Decree Nisi in the 3 months stipulated, the Decree Nisi is made absolute, then no right of appeal exists again. Where a decree of dissolution of marriage under this Act has become absolute, a party to the marriage may marry again as if the marriage had been dissolved by death. According to some scholars, re-marriage should come in 90 days after the Decree Nisi is made absolute.
A decree absolute popularly known as "divorce certificate" shall be issued at this point. Damages, maintenance, settlement of properties and custody of children of the marriage would also be determined during the judgment.
In conclusion, it is worthy to note that marriage is highly placed in society and even the court does not encourage the dissolution of marriage, hence the provision for reconciliation. However, where the Petitioner can prove that the marriage has broken down irretrievably, the court would proceed to grant the divorce.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080