Preem & Partners | 5th February, 2025
While it is cliché to say, “every beginning has an end”, for some marriages, the end of the marriage may be the dissolution of marriage or divorce. Quite often, we’re faced with various depictions of divorce just as collection of a partner’s ring, signing of papers between husband and wife as portrayed in Nollywood, as well as social media stunts and shenanigans.
While these are quite amusing and entertaining, they can also be misleading. Some formality is necessary to bring the marriage to an end as there are strict rules that regulate the solemnization, celebration, and termination of marriage contracts. These rules are embodied in the Marriage Act, Matrimonial Causes Act, Matrimonial Causes Rules, and Islamic and Customary laws. This article seeks to create the right awareness of the prerequisite for instituting divorce (dissolution of marriage) and inherent conditions for getting divorced in Nigeria, with emphasis on statutory marriage.
This is discussed under customary marriage, Islamic marriage, and statutory marriage.
This is mostly non-judicial and can take place either by the mutual consent or unilateral act of either of the spouse. The return of the bride price largely signals the dissolution of the marriage. Often, the reasons for divorce which are very common is mostly on moral grounds such as adultery, murder, etc.
In Nigeria, there is no formal mechanism or laws regulating dissolution of marriages as a husband may divorce his wife by pronouncing talaq talaq or ila.
Talaq is the most prevalent form of divorce amongst Muslims. In effecting this type of marriage dissolution, the word talaq may not necessarily be used, but phrases such as ‘I divorce you, ‘I separate from you’ ‘you are cut. Talaq may be oral, in writing, in sign language or communicated through a messenger (where both parties live in different locations). Irrespective of the mode adopted, it is expected that a valid talaq takes place in the presence of witnesses. In adopting this mode of marriage dissolution, the husband does not expressly say that he has divorced his wife but does so by actions such as not having sexual relations with his wife.
Statutory marriages, commonly referred to as “court marriages” or “registry marriages” can only be dissolved on the sole ground that the marriage has irretrievably broken down. The court is responsible for granting such dissolutions. To establish that a marriage has broken down irretrievably, the spouse filing for divorce (the “Petitioner”) must provide evidence of one or more of the following: [1]
1. Duration of Marriage
It must be noted that, generally, divorce cannot be instituted unless the marriage exceeds two years. [5] But this does not apply to divorce instituted with evidence of willful and persistent refusal to have sexual relations; adultery; rape, or sodomy, or habitual drunkenness or intoxication for two years; criminal conviction for five years; attempt to murder the Petitioner or cause grievous harm to the Respondent. [6]
However, although the reason for instituting the divorce does not come within these facts, the court can still allow the divorce to be instituted by leave if refusal to grant the leave to institute will cause exceptional hardship or depravity to the spouse seeking the divorce. [7] This goes to show that the two years rule is not absolute.
In addition to the reasons above, the spouse seeking the divorce must not have condoned the acts of the Respondent complained of, must not have connived with the Respondent in perpetuating any of the acts, and must not have previously colluded with the Respondent with the intention to perverse justice. These are statements that must accompany the petition for divorce. [8]
Despite the statements, the divorce sought may be refused if it is proved that the spouse seeking the divorce indeed condoned the acts of the Respondent, connived with the Respondent, and had colluded with the Respondent.
For a marriage to be dissolved or be subject to divorce, it must not be void or voidable but must have been legally conducted. A void marriage is invalid from the start and does not require a decree of dissolution or divorce because they never existed. Examples of void marriages include cases where one party is already lawfully married to another person, the parties are closely related by blood or marriage (prohibited degrees of consanguinity or affinity), the marriage was not valid under the law of the place where it occurred due to improper solemnization, one party did not give real consent due to duress, fraud, mistaken identity, or lack of understanding of the marriage contract, or where either party is under the legal marriageable age of 18 years. [9]
A voidable marriage, on the other hand, is legally valid until one party challenges it in court and obtains a decree of nullity to annul it. If not challenged, it remains a valid marriage. Voidable marriages include cases where either party is incapable of consummating the marriage, is of unsound mind, mentally defective, or suffers from recurrent insanity or epilepsy, where either party has a communicable venereal disease, or where the wife is pregnant by another man at the time of the marriage. [10]
Both void and voidable marriages rather require a decree of nullity to formally declare its non-existence and not a dissolution.
Although the ground that the marriage has broken down irretrievably is the only prerequisite for instituting a divorce under statutory marriage in Nigeria, other factors such as the duration of the marriage (if it is less than two years), the condonation, connivance, or collusion of the Petitioner, as well as the voidness or voidability of the marriage, are also considered before a spouse can institute divorce proceedings.
It must be added that in Nigeria, the statutory divorce process begins with filing a petition at the High Court of a State where the marriage was solemnized. [11] Generally, after the Respondent’s reply, the case proceeds to a hearing. If after the hearing the court is satisfied that the marriage has broken down irretrievably, it issues a DECREE NISI, confirming the Petitioner’s entitlement to a divorce but not immediately dissolving the marriage. [12] A party may appeal the DECREE NISI [13] and the spouse may reconcile [14] before it becomes absolute. However, if no appeal is made, a Decree Absolute is issued, officially dissolving the marriage, allowing either party to remarry. [15]
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