In Nigeria, marriage simply means the coming together of a man and woman to become husband and wife via a customary law marriages and Marriages under the Act, called the Statutory Marriage where a man can only be married to one woman and a woman can only be married to one man at a time and it is monogamous in nature. Customary law marriages are regulated by the customs and practices upon which the marriage was contracted.
While this joining is supposed to last till death, certain factors make parties go their separate ways, ultimately leading to dissolution of the marriage, that is, divorce (the process of terminating a marriage or marital union on grounds that it has broken down irretrievably.)
When this happens, especially in marriages celebrated under the Act, the provisions of the Marriage Act must be complied with. Divorce proceedings are regulated by the Matrimonial Causes Act, 2004 (MCA) which outlines the grounds and procedure to follow.
The sole ground upon which a party can present a petition before the court under the Matrimonial Causes Act, 2004 is that the marriage has broken down irretrievably and in proving that the marriage has broken down irretrievably, a party is expected to establish at least one of the facts listed in Section 15 (2) (a) –(h) of the MCA, 2004 which are adultery, willful and consistent refusal to consummate the marriage, desertion for at least one year immediately preceding the petition, intolerable behavior, living apart for three years, living apart for a minimum of two years where the respondent will not object to the dissolution, respondent has failed to comply with a decree or restitution of conjugal rights and absence of the respondent for a long time such that he is presumed to be dead.
According to Section 30 of the Matrimonial Causes Act, 2004, divorce proceedings cannot be instituted within two years of marriage, except with leave of court which may grant leave in exceptional circumstances, such as hardship or depravity.
To institute divorce, there is need to engage the services of a lawyer to advise on the divorce process, prepare court documents and represent the petitioner in court.
All State High Courts and High Court of Federal Capital Territory have jurisdiction to hear and determine matters concerning divorce. The petition must outline the grounds for divorce and facts supporting the claim. The petition and accompanying documents must be served on the respondent directly by a court bailiff.
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The Respondent may respond with an Answer and/or cross-petition within a specified period (usually 28 days) and if the marriage produced children, the court may direct the parties to attend a compulsory conference to agree on custody, maintenance, and property sharing. The agreement will be filed in court. Where parties cannot reach an agreement, the Judge will decide on such matters in the best interest of the children particularly those below the age of 18.
Both parties present their cases, lead evidence and cross-examine witnesses. If the court is satisfied with the evidence, it will pronounce a judgment dissolving the marriage with a Decree Nisi, which becomes Absolute after three months.
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