THE ABC OF DIVORCE PROCEDURES IN NIGERIA: SEPARATING MYTH FROM REALITY

 

Introduction

Divorce, the legal dissolution of a marriage, can be a tumultuous experience, fraught with emotional and legal complexities. In Nigeria, a nation rich in cultural diversity, divorce procedures are further complicated by the interplay of statutory law, customary law, and religious law (Sharia Law). This article aims to demystify the divorce process in Nigeria, providing a clear and comprehensive guide to the legal grounds, procedural steps, and common misconceptions surrounding this subject-matter.

What is Divorce?

Divorce is a legal process that dissolves the marital union between two married couples. The marriage must be a marriage contracted under the Act (in a lay man’s language the court marriage). While divorce action can be instituted in the High Court, the customary marriages can be dissolved in a Customary court of the area where the marriage was contracted. In Nigeria, as in many other countries, divorce is regulated by laws that outline the grounds for divorce and the procedures to follow. The Laws includes but not limited to Matrimonial Cause Act or Rules as the case maybe and The Marriage Act.

Legal Grounds for Divorce in Nigeria: 

While societal norms and cultural beliefs may influence perceptions of divorce, the legal grounds for divorce in Nigeria are firmly rooted in statutory law. According to the Matrimonial Causes Act, the sole ground for divorce is the irretrievable breakdown of the marriage. To substantiate this claim, one or more of the following factors must be proven in court:

Wilful and persistent refusal to consummate the marriage: 

This pertains to situations where one spouse has consistently refused to engage in sexual intercourse with the other, without any justifiable reason, since the marriage commenced.

Adultery: 

If one spouse has committed adultery, and the other spouse finds it intolerable to continue cohabitating, this can serve as grounds for divorce.

Desertion: 

If one spouse has deserted the other for a continuous period of at least one year, this can be considered a valid ground for divorce.

Cruelty: This specifically refers to physical or mental abuse directed towards the wife, making it unsafe or unbearable for her to continue living with her husband.

Other factors: These may include a spouse's imprisonment, engagement in bigamy, or prolonged absence that leads to the presumption of death.

It is important to note that while customary law may recognize other grounds for divorce, such as the non-payment of the bride price or disrespect towards in-laws, these are not recognized under statutory law.

Procedural Steps for Obtaining a Divorce in Nigeria

Going through the divorce process in Nigeria requires a clear understanding of the procedural steps involved. The process generally unfolds as follows:

1. Filing a Divorce Petition: The spouse initiating the divorce, known as the petitioner, commences the process by filing a petition with the High Court. This petition outlines the grounds for divorce and presents the factual basis for the claim.

2 Service of Court Processes: Once the petition is filed, the other spouse, referred to as the respondent, must be formally served with a copy of the divorce papers. This ensures that the respondent is duly informed of the legal proceedings.

3 Trial: The court schedules a trial date, providing an opportunity for both parties to present their respective cases and submit evidence to support their claims.

4 Judgment: After carefully considering the evidence and arguments presented, the court delivers a judgment, either granting or denying the divorce. In cases where the divorce is granted, the court may also issue ancillary orders pertaining to child custody, support, and the division of property.

It is crucial to recognize that the type of marriage determines the appropriate court for filing the divorce petition. Statutory marriages, conducted under the Matrimonial Causes Act, are dissolved through a High Court. Conversely, customary marriages, rooted in tradition and custom, are dissolved through a Customary Court.

Furthermore, it is essential to remember that only a High Court possesses the legal authority to dissolve a statutory marriage in Nigeria. Couples cannot simply separate without obtaining a court order and consider themselves legally divorced.

Types of Divorce in Nigeria

Nigeria's diverse cultural landscape is reflected in its recognition of different types of marriage, each with its own distinct set of divorce procedures:

Statutory Marriage: This type of marriage, often referred to as "court marriage," is monogamous and conducted at a government registry or a licensed place of worship. Divorce in statutory marriages is governed by the Matrimonial Causes Act and adheres to the procedural steps outlined earlier.

Customary Marriage: Rooted in the customs and traditions of various ethnic groups, customary marriages are potentially polygamous. Divorce in customary marriages can be non-judicial, involving an agreement between families and the return of the bride price, or judicial, requiring an order from a Customary Court.

Non-Judicial Divorce under Customary Law

In some instances, customary marriages can be dissolved through a non-judicial process. This typically involves the following steps:

(a) Discussion with families: The wife initiates the process by discussing the need to end the marriage with her parents or family representatives.

(b) Deliberation with the husband's family: The wife's family representatives then engage in discussions with the husband's family regarding the divorce.

(c) Agreement on bride price repayment: The families collectively determine the amount of the bride price and marriage expenses to be returned to the groom's family. This decision is often influenced by the duration of the marriage and the number of children, if any.

d) Repayment of bride price: Once an agreement is reached, the wife's family repays the husband's family through their representatives, signifying the dissolution of the marriage.

Islamic Marriage 

Governed by Islamic law, this type of marriage is also potentially polygamous. Divorce in Islamic marriages can take various forms, including:

Talaq (repudiation by the husband): This form of divorce involves the husband pronouncing the word "talaq" three times to signify his intention to end the marriage. However, specific conditions must be met for talaq to be valid, including:

The woman must be in a state of purity (free from menstrual blood and the blood of childbirth).

There should be no cohabitation between the spouses after the woman's purification period.

The pronouncement of talaq should be made in a manner that allows for reconciliation.

The husband should not pronounce talaq more than once within the waiting period (three months).

The intention to divorce must be clear and unambiguous.

The pronouncement of talaq must be witnessed by at least two individuals.

Khul'u (divorce initiated by the wife with a payment to the husband): In this scenario, the wife seeks to dissolve the marriage by offering a payment or "ransom" to the husband.

Mubarah (divorce by mutual consent): This involves both spouses agreeing to end the marriage.

Historically, Nigeria's legal system has recognized four types of marriage and divorce: African customary, Islamic, Christian, and statutory. While statutory and Christian marriages are monogamous, African customary and Islamic marriages allow for polygamy. This historical context underscores the diverse legal and social influences that shape divorce procedures in Nigeria.

Rights and Obligations of Spouses During and After Divorce

During and after divorce proceedings, spouses have specific rights and obligations, particularly concerning child custody, support, and the division of property. These matters are often addressed through a divorce settlement, which encompasses various aspects such as child custody, visitation, child support, alimony, health and life insurance, division of real estate, vehicles, household items, bank accounts, debts, investments, retirement plans, and college tuition for children.

Child Custody and Support

In divorce cases involving children, the paramount consideration for the court is the welfare and best interests of the child. This principle takes precedence over any traditional customs that may favor the father in custody matters. The court carefully evaluates various factors, including the child's age, health, emotional needs, and the parents' capacity to provide a stable and nurturing environment.

While the Matrimonial Causes Act does not provide a specific definition of "custody," it generally encompasses the care, control, and maintenance of the child. The court may grant sole custody to one parent, joint custody to both parents, or, in exceptional cases, award custody to a third party if it is deemed to be in the child's best interest.

In addition to custody arrangements, the court may also issue orders for child support. This includes financial provisions to ensure the child's well-being, education, and other essential needs. Any child under the age of 21 is automatically entitled to maintenance, and in certain circumstances, the court may extend this entitlement to children over 21.

Division of Property

The division of property in divorce cases is subject to the type of marriage and the applicable laws. In statutory marriages, the court has the authority to order the settlement of property between spouses. This includes both real and personal property acquired during the marriage.

The court strives to divide property in a just and equitable manner, taking into account factors such as each spouse's contributions to the marriage, their financial needs, and the welfare of any children. The court may order the partitioning of property, the sale of property with proceeds divided between the spouses, or one spouse buying out the other's share.

However, it is important to acknowledge that Nigerian courts, unlike those in some other countries, do not redistribute property at divorce. This can potentially disadvantage the financially weaker spouse, who may have made significant non-financial contributions to the marriage.

In customary marriages, the division of property often depends on the specific customs and traditions of the community. In some cultures, women may have limited property rights and may not be entitled to a share of marital assets upon divorce.

It is worth noting that divorce dissolves the marriage and releases both parties from the obligations of the marriage contract,

Common Myths and Misconceptions about Divorce in Nigeria

Divorce in Nigeria is often shrouded in myths and misconceptions that can create confusion and anxiety for those going through the process. Some of the prevalent misconceptions include:

Irreconcilable differences are not a valid ground for divorce: This is inaccurate. While the Matrimonial Causes Act uses the term "irretrievable breakdown," irreconcilable differences essentially constitute the underlying reason for the breakdown of the marriage.

Adultery is not a ground for divorce for women: This is also incorrect. Adultery by either spouse can be a valid ground for divorce if the other spouse finds it intolerable.

Divorce is not possible in customary marriages: This is not true. While customary marriages may have different procedures for divorce, they can be dissolved either through mutual agreement or by an order from a Customary Court.

Women have no rights in divorce cases: This is a harmful misconception. While customary law may vary in its treatment of women, statutory law provides for the protection of women's rights in divorce, including the right to custody, support, and a share of marital property.

It is crucial to rely on accurate legal information and seek professional guidance when dealing with divorce in Nigeria.

Conclusion

Divorce in Nigeria is a multifaceted process shaped by the interplay of statutory law, customary law, and religious practices. Understanding the legal grounds, procedural steps, and the different types of divorce is essential for anyone considering or undergoing this life-altering event.

While customary law may have historically favored the father in child custody cases, recent legal developments prioritize the child's welfare, potentially overriding customary practices. This reflects an evolving legal landscape that seeks to protect the best interests of children in divorce proceedings.

However, challenges remain, particularly in the division of property. The fact that Nigerian courts do not redistribute property at divorce can disadvantage the financially weaker spouse, often the wife, who may have made substantial non-financial contributions to the marriage.

This article has sought to dispel common myths and misconceptions surrounding divorce in Nigeria, providing clarity and guidance on this complex issue. It is imperative to remember that the welfare of children and the equitable division of property are paramount considerations in divorce proceedings. Seeking legal advice from a qualified professional is always recommended to ensure your rights are protected and that you navigate the process effectively.

Furthermore, it is important to recognize the need for ongoing legal reform and improvements in divorce laws to better address the challenges and complexities faced by individuals navigating this process. This includes ensuring greater protection for the rights of all parties involved, particularly women and children, and promoting a more equitable and just approach to the division of property.

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This article is authored by Dada, Olumide Olunuyiwa, LLB, ACIPM, HRPL, LLM Candidate.