DIVORCE PROCEEDINGS AND EFFECT UNDER NIGERIAN LAW

Introduction

Divorce remains one of the most complex aspects of family law. In Nigeria, the process and effect of divorce vary depending on the nature of the marriage: statutory, customary, or Islamic. Customary and Islamic laws and principles govern customary and Islamic marriages.

This article is concerned primarily with statutory marriages, which are governed exclusively by the Matrimonial Causes Act (MCA) and Marriage Act. The Act provides a uniform procedure for divorce, regardless of religious or ethnic affiliation, and mandates judicial oversight for the dissolution of such unions.

Parties intending to dissolve their marriage must seek legal advice to understand their rights and obligations. A lawyer can provide guidance on the legal process, documentation required, and implications of the divorce.

GROUNDS FOR DISSOLUTION OF MARRIAGE

Under Section 15(1) of the MCA, a petition for divorce may be presented on the ground that the marriage has broken down irretrievably. Section 15(2) provides the specific facts that constitute an irretrievable breakdown, including:

• The respondent has willfully and persistently refused to consummate the marriage.
• The respondent has committed adultery.
• The Petitioner finds the behaviours of the respondent intolerable and cannot continue to live with him/her.
• Desertion for at least one year.
• Separation is for a period of two years, and the respondent does not object (uncontested).
• Living apart for three years (no-fault basis).
• Failure for at least one year to comply with a decree of restitution of conjugal right.
• Presumption of death where the respondent has been missing for at least seven years.

JURISDICTION

By the provisions of Section 2 of the Matrimonial Causes Act, jurisdiction in matrimonial causes lies exclusively with the High Court of a State or of the Federal Capital Territory.

DIVORCE PROCEEDINGS

1. Drafting and filing of the divorce petition: This process begins with the petitioner drafting and filing a divorce petition at the appropriate High Court. The petition outlines the grounds and reason for divorce and provides details about the marriage, such as names, date of marriage, family properties, and any children involved.

The divorce petition also contains:

• Details of the marriage (date, place, and details of the parties).
• Copy of the marriage certificate
• Facts for the divorce.
• Proposals regarding child custody, maintenance, and division of property.
• Reliefs sought by the Petitioner.

The filing requires the following documents:

• Notice of Petition
• The divorce petition.
• Marriage certificate (or a copy).
• Affidavit of verification confirming the facts stated in the petition..
• Certificate relating to reconciliation to be signed by the legal practitioner.
• Acknowledgement of service
• Notice of Address for Service.
• Any other supporting documents (e.g., financial statements if applicable).

3. Payment of fees: The attorney fee must be paid before filing the petition. It is the lawyer filing who shall be responsible for the payment of court filing fees. The fee structure may vary depending on the type of lawyer hired and the case’s complexity.
4. Service of Process: After filing, the divorce petition must be served on the other party, along with a notice of the hearing date. This must be done through a court bailiff.

5. Answer and Cross-Petition: The respondent can file an answer to the petition, admitting or denying the allegations. The respondent can also file a cross-petition if he/she wishes the court to rely on a separate reason to prove the grounds for the divorce.
6. Compulsory Conference (Mediation): In some circumstances where children below the age of 18 and settlement of properties are involved, parties must participate in a mandatory conference to find a middle ground, and where parties cannot reach an agreement, the Judge will decide on such matters. Whatever the parties agree upon mutually must be documented and signed by both parties. The Judge shall adopt this settlement agreement between parties as part of his judgment when the marriage is being dissolved.
7. Court Hearing: On the scheduled hearing date, both parties will appear before the Judge. In some cases, the court may require the parties to explore the possibility of reconciliation. However, where effort toward reconciliation fails, the court will proceed to consider the case.During the trial, both parties will present their cases with evidence and witnesses where necessary. Upon conclusion of the trial, the legal practitioners representing the parties will present legal arguments in support of the facts and evidence presented by the parties. In an event where the respondent filed an answer to the petition, parties will present evidence, and witnesses may be called to testify. In circumstances where the respondent does not respond to the suit or file an answer, only the petitioner will testify, and the right of the respondent to testify will be foreclosed.
8. Judgment: The court assesses the evidence and delivers a judgment. If the court is satisfied that the marriage has broken down irretrievably, the Judge will grant a decree nisi, a provisional divorce order.
9. Decree Absolute: After 90 days, the petitioner can apply for a decree absolute, the final divorce order, officially dissolving the marriage.

Ancillary Matters:

Alongside the divorce, the court may also address ancillary matters such as:

• Custody and access arrangements for children: Determining where the children will live and the non-custodial parent’s visitation rights.
• Settlement of Property: Deciding how to divide the couple’s property, including the matrimonial home, finances, and other assets.
• Spousal and child support: Determining if one spouse needs to pay financial support to the other or for the children.

Duration:

The duration of the divorce process in Nigeria can vary significantly depending on the complexity of the case and the court’s workload. Uncontested divorces generally take less time than contested ones. It can take anywhere from several months to a few years to finalize a divorce in Nigeria.

Other Key Considerations:

• Two-Year Rule: A divorce petition cannot be filed within two years of marriage unless the court grants leave (permission) due to exceptional hardship.
• Legal Representation: Engaging a qualified lawyer is crucial to navigating the legal complexities and protecting your rights.

 LEGAL EFFECTS OF DIVORCE

Change in Marital Status

Upon issuance of a Decree Absolute, the parties are restored to the status of single persons and may legally remarry.

Termination of Rights and Obligations

Divorce terminates the legal rights and obligations incidental to marriage, including inheritance rights, unless otherwise provided by testamentary disposition.

Custody and Parental Responsibility

While divorce affects the custodial arrangement, it does not terminate parental responsibility. The non-custodial parent retains visitation rights and obligations toward the child’s welfare and upbringing.

Emotional and Social Implications

Though not strictly legal, divorce often carries social and psychological ramifications, particularly within Nigerian society, where cultural and religious norms may stigmatize divorced individuals, especially women.

Conclusion

The process of obtaining a divorce entails strict compliance with established legal rules and procedural requirements. Given the complexity and potential emotional and financial implications involved, it is highly advisable to engage the services of a qualified legal practitioner. A lawyer can provide essential guidance through each stage of the proceedings, ensuring that all necessary documentation is properly prepared and filed, procedural timelines are met, and that the legal rights and interests of the client are effectively safeguarded throughout the duration of the process.

 

This article is for information purposes only. Please seek expert guidance for your specific matters.

For expert guidance on arbitration, litigation, and dispute resolution matters, please contact our specialized team in the Litigation & Dispute Resolution Practice , Part of our full-service offering across Lagos, Abuja, and Abakaliki. Please contact our partner Hans Offia on [email protected]