BY NKEMJIKA ESTHER
The word divorce is not a foreign word to the ordinary man on the street; it is associated with the breaking up of marriages. As marriage is as old as man, so is divorce. Every type of social, cultural or religious beliefs has certain rules or conditions for divorce. Divorce is simply the dissolution of a marital union. Divorce is also the dissolution of a marriage by a court . Accordingly, there are two types of marriage legally recognised in Nigeria; Marriage under the Act and Customary Law Marriage including Islamic Law Marriage . Note that church marriage is not a type of marriage legally recognised in Nigeria as succinctly put by Palmer J., in Obiekwe v Obiekwe :
A good deal has been said about “church marriage” or “Marriage under the Roman Catholic Law.” So far as the Law of Nigeria is concerned, there is only one form of monogamous marriage, and that is marriage under the Ordinance. Legally a marriage in a Church is either a marriage under the Ordinance or it is nothing… if the parties had not been validly married under the Ordinance then either they are married under Native Law and Custom or they are not married at all. In either case the ceremony in church would have made no scrap of difference to their legal status.
Having mentioned the types of legally recognised marriages in Nigeria, this essay seeks to do a direct comparison of the procedure for the dissolution of these types of marriages.
DISSOLUTION OF MARRIAGE UNDER THE ACT
Firstly, it is important to note that dissolution of marriage is one of the reliefs available to parties in a matrimonial petition. Others include; nullity of marriage (void or voidable), judicial separation, restitution of conjugal rights and jacitation of marriage .
Before the Court (by Court the author means any State High Court in Nigeria provided the petitioner is domiciled in Nigeria) can make a decree of dissolution of a marriage, such marriage must have broken down irretrievably . The Act goes further to explain what amounts to the term broken down irretrievably. Section 15(2) of the Act provides thus:
The Court hearing a petition for a decree of dissolution of a marriage 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 facts-
a) That the Respondent has wilfully and persistently refused to consummate the marriage;
b) That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
c) That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
d) That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the Petition;
e) 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;
f) That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the Petition;
g) That the other party to the marriage has, for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under this Act;
h) That the other party to the marriage has been absent from the Petitioner for such a time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
To prove the condition stated in 15(2(a) above one most understand the keyword wilfully and repeatedly. Wilfully simply means intentional or deliberate while repeatedly means constantly. Persistent in this context is a word which implies continuity and seems to me to be somewhat analogous to the word ‘repeatedly’. Wilful means in the context the doing of something as a matter of conscious will. The end result of the combination of the two words seem to me that in order to make out a case under section 28(c) [section 15(2(a) of the Act] it will be necessary to show that there was a refusal to consummate and that despite a number of requests, the respondent continued to refuse to engage in sexual intercourse with the other spouse. In other words, refusal to consummate as a result of illness, or refusal on one or two occasions will not suffice. It should be noted that consummation entails full sexual intercourse. Once both parties has had a single act of sexual intercourse, the marriage has been consummated and subsequent refusal to have sex will not amount to refusal to consummate but may be a ground for dissolution under section 15(2)(c). Sexual intercourse had by parties prior to the marriage does not amount to consummation . It should be noted that for the petitioner to prove refusal, there must have been a request and an opportunity to comply with the request. The fact that the respondent uses contraceptive does not make it less of a sexual intercourse nor does the sterility or infertility of the respondent derogate consummation .
In Section 15(2(b) adultery is hard to prove as the parties are hardly ever caught. In most cases adultery is usually inferred from the conduct of the parties and the surrounding circumstances. In Akinyemi v Akinyemi, the Respondent was found kissing and embracing the Co-Respondent who had come to drop her off at about 2:30am. They had been out together alone for about 5 hours, visiting night clubs and returned drunk. The Supreme Court held that there was a proper case to infer adultery as a result of evidence of fondness to each other and the opportunity. The illustrations envisaged under section 15(2(c) of the Act is provided in Section 16(1) of the Act which includes rape, sodomy or bestiality or since the marriage, the respondent has, for a period of not less than two years been a habitual drunkard or habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation. In order for a Petitioner to fulfil the requirement under section15(2)(c) of the Matrimonial Causes Act, the Court of Appeal per Abba Aji, JCA in Nanna v Nanna posited thus:
In order to satisfy the requirement of S.15(2)(c) of the Matrimonial Causes Act, the petitioner must satisfy two factors:
a) The sickening and detestable or condemnable conduct of the respondent; and
b) The fact that the petitioner finds it intolerable to continue to live with the respondent.
The two facts are severable and independent but both must be proved. The Court also held that the test of intolerability is objective and not subjective. What is objective and subjective will however depend on the circumstances of a given case .
Desertion means the abandoning and forsaking of a spouse by the other without any justification, thus renouncing his or her responsibilities and evading his or her duties. This implies that the forsaking spouse separates and intends not to return to the other spouse, i.e. there must be animus deserendi (the intention to withdraw from cohabitation permanently) . Merely living apart does not amount to desertion as it could be done with consent of both parties. Desertion could either be constructive or de facto, it could be constructive where a spouse’s conduct makes the other spouse to live apart. In such circumstances, the spouse whose conduct caused the abandonment by the other will be deemed to have constructively deserted the fleeing spouse while in de facto desertion the couple lives under the same roof but live different lives .
It is important to note that under Section 30 of the Matrimonial Causes Act no petition for a decree of dissolution of marriage shall be instituted within two years after the date of the marriage except by leave of the court. However, subsection (2) provides exceptions to this rule concerning matters specified in Section 15(2(a)(b) or 16(1)(a) viz:
a) That the Respondent has wilfully and persistently refused to consummate the marriage;
b) That since the marriage, the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
c) That since the marriage, the Respondent has committed rape, sodomy or bestiality; and or
d) Where the institution of proceedings for dissolution of marriage is by way of cross-proceedings.
The rationale of this rule is “not only to deter people from rushing into ill-advised marriages, but also to prevent them from rushing out of marriage as soon as they discovered that their marriage was not what they expected”. It is also important to note that the Act encourages both counsel and the court to try and encourage and effect reconciliation between the parties before resorting to matrimonial proceedings.
DISSOLUTION OF MARRIAGE UNDER CUSTOMARY LAW
There are two modes of dissolving marriages under Customary Law. They are judicial divorce and non-judicial divorce.
JUDICIAL DIVORCE
This approach exists side by side with non-judicial in most communities in Nigeria. It is normally resorted to only when family arbitration has failed to reconcile the parties. In the modern days, judicial divorce is rapidly gaining prominence because it provides recorded evidence of divorce. Generally, customary courts have the jurisdiction to entertain cases of customary law marriage divorce but sometimes, magistrate court hear such matters, especially if there are no customary courts established in the locality customary law of which is no issue.
Technically there are no standardized grounds for divorce under customary law; it is based on the peculiar provisions of each individual customs. However, there are some situations that would suffice for dissolution of a marriage under customary law, they include adultery(particularly of the wife), loose character, impotency or sterility of the husband or wife, laziness, ill treatment and cruelty, leprosy or other harmful diseases which may affect procreation, witchcraft, addiction to crime and desertion. However some parts of Nigeria have codified the grounds for dissolution of marriage under customary law:
1. Betrothal under marriageable age;
2. Refusal of either party to consummate the marriage;
3. Harmful diseases of a permanent nature which impair the fertility of a woman or the virility of a man;
4. Impotency or sterility of the husband or wife etc.
Most times parties first try to dissolve the marriage non-judicially. They only resort to judicial means where the refund payment of the bride price becomes an issue. It is important to note that the refund payment of by the bride price officially determines the marriage .
NON-JUDICIAL DIVORCE
This is the most commonly used mode of dissolution. Here, family mediators play an important role. They first try to reconcile both parties before they resort to dissolution. Non-judicial divorce may be effected by; mutual agreement or unilateral action of the spouses. In the former case, where the marriage has broken down, the families first attempt to reconcile the couple. If reconciliation fails, the spouse may agree before family members to dissolve the marriage, and then the agreement on the repayment of bride price follows.
In the latter case, the dissolution is either done by the husband or wife. A husband may, for instance, may on his own decision send his wife away, intending thereby to bring the marriage to an end. On the other hand, a wife who has been grossly ill-treated by her husband may run away from the matrimonial home and return to her parents with the intention of breaking up the marriage. Her father or guardian may then proceed to refund the bride price paid in respect of her marriage.
DISSOLUTION OF ISLAMIC MARRIAGE
There are three forms of dissolution under Islamic Law-
1. Talaq or unilateral repudiation of the wife by the husband
Talaq is an Islamic law procedure by which a husband may unilaterally bring his marriage with the other spouse to an end. Here, the husband pronounces the words I divorce you which severs the dependence of the wife on the husband. Talaq takes effect immediately it is pronounced. Talaq must be pronounced when the wife is in the state of purity before any sexual relations between the parties.
2. Divorce by mutual consent
This can be achieved through Musawa or Khul. Musawa is the dissolution of marriage on the basis of mutual release of the spouses from any outstanding commitment arising from the marriage relations . This is not common in Nigeria. Khul is described as the dissolution of marriage granted by the husband on the basis of financial consideration offered by the wife-commonly the return of the bride price (mahr) and acceptance by the husband.
3. Divorce by judicial decree
This method is only resorted to when peaceful resolution by the appointed arbitrators is impossible. The arbitrators can also recommend steps to be taken by the court in order to bring an end to the misunderstandings between the spouses. Their decision is binding on the judge and has to be implemented.
In furtherance of this essay, it is imperative to compare both the dissolution of marriage under the Act and under customary law including Islamic law.
Both types of marriages always seek to reconcile both parties before resorting to dissolve the marriage as the ultimate goal is to protect the marital institution than to seek its end. A marriage under the Act can only be dissolved by a court of competent jurisdiction (judicially) but marriages under customary law including Islamic law can be dissolved both judicially and non-judicially. In a marriage under the Act an application for divorce cannot be brought for a marriage less than two years unless the petitioner fulfils certain conditions as stated above in this essay. However, this is not so for marriages under customary law.
The repayment of the bride price determines a marriage under customary law (unless such payment is waived by the husband), while a marriage under the Act is determined by decree for dissolution of marriage by the court.
Finally, in a marriage under the Act there is only one ground for the dissolution of marriage- that the marriage has broken down irretrievably – it is standardized. While under customary law there is technically no standardized ground for divorce as it varies from custom to custom.
