Introduction:
The procedure for how to dissolve marriages in Nigeria depends on the type of marriage contracted. For the purpose of divorce proceedings, there are two major types of marriage in Nigeria, which are:
Statutory marriage; a statutory marriage (also known as legal marriage or marriage under the Act) can only be dissolved by any State High Court in Nigeria, irrespective of where it was contracted, be it Nigeria or outside Nigeria. The dissolution process is commenced by filing a petition in the High Court of the state where any of the parties is domiciled. However, in reality, many divorce case filed in Ogun State emanate from Lagos State! Counsel prefer to go a jurisdiction which is less busy compared to Lagos State which can termed as the headquarters of litigation in Nigeria, hence the choice of Ogun State due to proximity and speedy dispensation because their dockets are less congested.
Customary marriage (including Islamic marriage):The aspect of dissolution of customary marriages has been extensively dealt with in the previous publication. We are going to consider dissolution of statutory marriages this time around.
Filing a petition for dissolution of marriage does not guarantee that it will be successful, to dissolve a legal marriage, the court has to be satisfied that the parties have exhausted settlement options and coming to court is the last option.
Dissolution of marriage by a court should be on grounds of an irretrievable breakdown of the marriage. Section 15(b) of the Matrimonial Causes Act stipulates the meaning of “irretrievable breakdown of marriage”, in which the law specifies that the court are only able to determine that the marriage has irretrievably broken down in one or even more of the following facts or perhaps reasons:
- a) That the respondent willingly refused to consummate the marriage.
- b) That after the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- c) That the respondent has behaved in a way that the petitioner can not be reasonably expected to live with the respondent.
- d) That the respondent has deserted the petitioner for a constant period of at least one year preceding the petition.
- e) That the parties have lived apart for a constant period of a minimum of 2 years preceding the filing of the petition and that the respondent doesnot object to a decree of dissolution being granted.
- f) That the parties to the marriage have lived apart for a continuous period of at least three years preceding the presentation of the petition.
- g) The other party to the marriage for a period of not less than one year failed to comply with a decree of restitution from conjugal rights made under that Act.
- h) That the other party to the marriage has been absent from the petitioner for such a time and in circumstances that are such, the petitioner has to provide good grounds for presuming that he or she is dead (seven years).
The proceedings for dissolution of marriage is usually instituted by way of Petition filed by the individual bringing the action called “the Petitioner” against whom it’s brought called “the Respondent”.
The Petition shall contain the following details:
Petition or perhaps suit number, Status and parties, Full names, and address and occupation of every one of the party to the proceeding maiden name of the wife just before marriage, particulars of the marriage.
Particulars of birth of the parties to the marriage and particulars relating to domicile or perhaps residents of the marriage in Nigeria
Particulars of cohabitation of the parties to the marriage and its ceasing must be stated in the petition.
Particulars of children of the parties to the children (if any) and also the marriage of either party to the marriage
Particulars of previous proceedings between the parties to the marriage, if any
Facts relied upon to prove the ground of petition these are facts to support the grounds in the petition.
Condonation, collusion and connivance, Proposed arrangement for children of the marriage, Custody, Settlement and Maintenance of property, reliefs being sought and address for service on Respondent.
The petition shall also be accompanied with other processes such as notice of petition, verifying affidavit, certificate relating to reconciliation, acknowledgement of service, original marriage certificate.
The respondent in reaction to the petition files a cross-petition and/or answer to the petition.
The petitioner may in response file a reply to an answer or even the answer to the cross petition as the case may be.
If the matters relating to settlement and custody of children are pleaded in the petition, the court may order a compulsory conference.
Upon the close of pleadings, the parties move to the trial stage, where each party will give an account of his/her the experience of in the marriage.
The following stage is actually adoption of final written address by the parties’ legal practitioner and finally judgment
It is noteworthy that unless the leave of the court is in fact obtained, no petition for dissolution of marriage might be filed within 2 years from the particular date of marriage.
Before the court approves the dissolution, the court is going to consider other issues, such as properties jointly owned by parties; custody; and also the maintenance of the children of the marriage.
Upon dissolution of the marriage by the court, the court then issues a Decree Nisi, which shall become Absolute after three months except:
Where there is a valid appeal against a Decree Nisi, it will not become absolute except at the expiration of a period of twenty-eight days from the day on which the appeal is determined or perhaps discontinued.
Where there are actually children of the marriage under the age of 16 years at the particular date of the Decree Nisi, the Decree shall not become absolute unless the Court is actually satisfied that proper arrangements have been made for the welfare and in appropriate cases, the advancement and training of the children.
Additionally, a Decree Nisi may be rescinded by the Court at any time before the Decree becomes Absolute:
Upon the application of either of the parties to the marriage on the ground that the parties have reconciled
On the application of a party to the proceedings, if the court is actually satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or perhaps some other circumstance.
Where an intervention takes place by the Attorney-General after a Decree Nisi has been made, the Court may rescind the Decree in case it’s proved that the Petitioner has been guilty.
Customary marriage and Islamic Marriage compared to marriage under the Act.
Unlike the statutory marriage that can just be dissolved only at the High Court, the Islamic and customary marriages can only be dissolved at the Customary or Sharia Court.
At the Customary Court, a petition for dissolution of marriage will be filed accompanied with an Affidavit stating that the marriage sought to be dissolved was conducted under native customary law.
After the petition has been filed, the same shall be served on the Respondent before the court is able to proceed to hear the issue.
Apart from dissolving the marriage, the Customary Court also has the power to make an order for custody of children of the marriage and order maintenance and children’s support.
Apart from Islamic marriage, a Christian Marriage conducted in an unlicensed worship centre may also be dissolved in the Customary Court, since same is not qualified as a Statutory Marriage.
The Customary Court proceedings are often governed by the Customary Law of a specific state.
In conclusion, it must be noted that process of divorce in Nigeria is actually longer than that of foreign jurisdictions, especially where the petitioner is resident in a busy city such as Lagos, this has made counsel devise and alternative to the delay by filing petitions in the neighbouring Ogun state where the cause list is not as congested as that of Lagos State.
CONTINUES NEXT WEEK
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