LET’S TALK DIVORCE (Pt. 2)

GROUND FOR DISSOLVING A MARRIAGE

Okay. Before we continue here, let me state clearly that only those married under the Act (what we call Court Marriage) can apply to High Court for a divorce. (You can read my article on “Are you sure you are married under the Act” to know if the marriage you contracted with your spouse can be said to be a court marriage). Those who did any other type of marriage apart from statutory marriage can approach the Customary Court for divorce, that is if they want a certificate to show for the divorce. Typically, there is really no need for that.

When I say “ground”, I am referring to the circumstances the Court will have to see before it can hear a divorce petition.

The only ground as prescribed by the Matrimonial Causes Act (the law that governs dissolution of Marriage in Nigeria), is that the marriage has broken down irretrievably.

What does that even mean?

It means that the marriage has gotten to a point where both parties cannot be expected to stay together anymore as husband and wife. Listed below are the facts that must be established before the Court can hold that a marriage has broken down irretrievably and must then grant a divorce order.

1. Refusal to have sexual intercourse with the spouse.
2. Adultery and intolerability.
3. Bad behaviour of spouse.
4. Presumption of death of spouse
5. Desertion
6. Living apart
7. Failure to comply with a decree of restitution of conjugal rights

These facts are independent and do not all have to be proven in a divorce proceeding. The existence and proof of one fact is typically sufficient. It looks straight-forward, right? Only that it is not. Each of these facts are deep in the context of the law.

For instance, what constitutes refusal to have sexual intercourse with spouse? Exactly. If the Petitioner can prove that since after the marriage, the Respondent (the other spouse) has willfully and constantly refused to consummate the marriage (have sexual intercourse) with him/her, then that is a serious ground for divorce. I mean, one of the major reasons for marriage is to have freely have sexual intercourse with one’s partner. Note that it must be a willful refusal. Not a refusal hinged on a particular incapacity. Take for instance, the female in the marriage had undergone a particular surgery and is currently healing up, such a person’s refusal cannot be said to be willingly. It must also be persistent, meaning that the Petitioner had constantly asked for it whether expressly or impliedly, and yet the respondent denies it. The court would grant the divorce to the person seeking it.

The second fact to be considered is adultery and intolerability. This looks even more easy to prove. Like it is just adultery. A low hanging fruit. At its core, adultery is an act between a man and a woman and only be said to have happened when a man penetrates a woman that is not his wife. So, if you see your wife having sexual intercourse with another woman, that is not adultery by our laws. Yes oh. Same goes if you see your husband with another man. Talk about equality. Next is how on earth do you prove adultery in court? This is a difficult one I tell you, because most often than not there is no direct evidence as to the penetration. Like, there is hardly anyone to say I saw it happen.  I know you know why that is the case. So how do you prove what you did not see. Usually, the court most times is forced to infer adultery from certain circumstances like suspicious circumstances (like your neighbor in your room with your spouse), birth of a child (when a child is born during the pendency of a marriage, only to be discovered that the child does not belong to the father) , blood test and DNA, conviction of rape (when a man is arrested for rape or sexual assault of a lady and is found guilty, this is proof of adultery), sexual diseases (like when a faithful spouse discovers that he/she suddenly has a sexually transmitted disease, the only option is to believe that it was passed to him/her by the other spouse) , and others. The last in this category is to prove that the spouse finds it intolerable to live with the adulterous partner. This means after one has successfully proved adultery, one must prove that he/she can no longer live with the adulterous spouse. How do you prove that?