How to get a divorce in Nigeria - filing for divorce

Getting a divorce in Nigeria is not as easy as getting married. One cannot just wake up and ask the court for a divorce without such reason falling under the grounds stipulated by the Matrimonial Causes Act LFN 1990, which provides the framework for divorce processes in Nigeria. A decree of dissolution of marriage shall not be made if the petitioner, in bringing or prosecuting the proceedings, has been guilty of collusion with intent to cause a perversion of justice. Even when both husband and wife both mutually agree to get a divorce for whatever reason, a decree of dissolution of marriage may still not be granted if there is evidence of collusion between them.

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 proceedings are of such a nature that it would not be appropriate to do so). If the final decision of a person is the option of a divorce, there are some prerequisites one must follow that will be discussed hereunder.

Consult a Lawyer

The first thing to do after deciding to get a divorce is to consult and brief a divorce lawyer about the divorce. A lawyer will help to determine the facts that constitute the ground for the divorce from the reasons given by the person seeking a divorce. Where from your discussion with the lawyer, it is discovered that you have more than one fact that constitutes a ground for divorce, your lawyer would advise you regarding the fact that has the strongest evidence with proof. There at least eight facts that constitute a ground for divorce under the Nigerian law.

Ground for divorce

A marriage celebrated under the Act i.e. Statutory Marriage can only be dissolved on the ground that the marriage has broken down irretrievably. The Court shall hold the marriage to have broken down irretrievably if, and only if, the petitioner satisfies the Court of one or more of the following eight facts‐

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.
That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent
That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
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.
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.
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;
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. The proof that, for seven years immediately preceding the date of the petition, the other party to the marriage was continually absent from the petitioner and that the Petitioner has no reason to believe that the other party was alive at any time within that period, is sufficient to establish the fact in question unless it is shown that the other party to the marriage was alive at a time within that period. 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

Section 30 MCA 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. This is to prevent abuse of the sanctity of marriage. The court will grant leave (permission) to institute a divorce where exceptional circumstances, which would cause hardship on the applicant or that the case is one involving exceptional depravity on the other party to the marriage.

Divorce Process

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.

Besides, for matrimonial causes, there is only one domicile, which is Nigeria, regardless of the location the parties reside.

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 timeframe.

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

Where a 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 having had time and opportunity of doing so and 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. A decree absolute popularly known as divorce certificate shall be issued at this point.

Other pronouncements as to damages, maintenance, and custody of children of the marriage would also be determined during the judgment.

In closing, marriage is highly placed in society, 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.