Filing for a divorce in Nigeria can be a stressful and terrifying experience. Although it is not a generally accepted remedial solution in our rather religious Nigerian society, its adoption in some cases is however necessary.
Divorce is the termination of a marital union, the canceling and/or reorganizing of the legal duties and responsibilities of marriage.
It can also be seen as dissolving the bonds of matrimony between a married couple under the relevant law and laws of a particular country and/or state. In Nigeria, the extant law in force is the Matrimonial Causes Act 1990.
Simply put, divorce is the putting to an end of a lawful marriage by a mutual agreement of both parties to put in motion a decree of dissolution.
Divorce often becomes an option in cases where emotions run dry. If every possible means for reconciliation has been exhausted, divorce becomes imminent.
Divorce in Nigeria is determined by the type of marriage. Let’s get a better understanding of this concept. Essentially, there are two types of marriage recognized by the law.
- The Statutory
- Customary Marriage.
A Statutory marriage which is also known as court marriage is simply the marriage conducted in a registry or someplace else with the authority to carry out marriage ceremonies.
A Customary marriage, on the other hand, is the type of marriage conducted either in an unlicensed church or in a traditional manner. Essentially, it is one conducted according to the customs and tradition of a particular sect of people. For example, Islamic marriage is recognized under the law to be a customary marriage.
Life as we know it does not always go as planned, especially when the notion of divorce becomes an option for a married couple undergoing serious marital issues. This article is written with the purpose of walking you through the main concepts and procedures.
Grounds For Divorce In Nigeria
On what grounds can you file for a divorce? The statutory law that regulates the concept of divorce lays out several reasons why marriage ties may be severed or broken. (Full details contained under the Matrimonial Causes Act CAP 220 LFN 1990).
Let’s shed more light on some of the instances stated under section 15 (2) :
1) That one spouse has willingly and persistently refused to consummate the marriage. This simply means that either the woman or man in the marriage has simply refused to engage in sexual intercourse with his/her partner.
2) That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. This entails breaking of marriage ties in the case of a cheating wife or husband.
3) That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
4) That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
5) That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and does not object to the decree of dissolution is granted.
6) 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.
7) 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 the Matrimonial Causes Act.
8) That the other party to the marriage has been absent from the petitioner for such time and in such circumstances has to provide reasonable grounds for presuming that he/ she is dead.
Stages of Divorce In Nigeria
Stage 1 of divorce in Nigeria
Commencing a divorce in Nigeria officially begins when your lawyer files what is known as a petition for divorce in the High Court. At this point, I would like to emphasize the importance of getting a qualified and licensed lawyer. A well-experienced lawyer will help you prepare and file all necessary documents.
Majority of the documents to filed by your lawyer contain basic but essential details like:
The name of your spouse
The location of your marriage
Period of time you have been married to your spouse
Your reason for filing for a divorce
What you want from the divorce
Available evidence to back up your demand for a divorce
With the help of a lawyer, you don’t have to worry about all the necessary court processes and legal drafting or paperwork. Except your presence is required. Another detail you should acknowledge is, the person who files the petition is usually referred to as the petitioner, and your spouse is the respondent.
Stage 2 of divorce in Nigeria
When your lawyer successfully proffers your documents to the court, it is assigned a file number in the court system in the Family court division. At this point, the content of your petition is then served to your spouse and his lawyer.
Depending on the court order, your spouse is then given a period of time to answer to the petition. At the response of your spouse, you will be able to ascertain if he/she agrees to the terms stated by the petition.
Stage 3 of divorce in Nigeria
At the response of your spouse, the court will then hear the case in open court. An appearance of available witnesses may be necessary. Your lawyer will also be presenting all available evidence that relates to the case.
Stage 4 of divorce in Nigeria
After the court hearing has been completed and the judge has agreed to dissolve the marriage, he will grant what is known as a ‘decree nisi’. However, the decree nisi does ultimately mean that the marriage has been dissolved. You will need to wait for another 3 months, after which the “decree nisi” will become a “decree absolute”.
Stage 5 of divorce in Nigeria
The last stage, however, involves the judge granting custody of children(if any) and sharing of property. The judge can also state how much should be paid for spousal support or child support.
Different divorce cases, present different experiences, and facts. Thus the above stages is a general overview of the steps involved in getting a divorce. Some other cases may take longer due to contention in the sharing of property and custody of children.
So, what is the rate of divorce in Nigeria? Apart from statistics, we know it has a rather low rate and then we wonder why, well, why not? We’ll be finding out subsequently. To this end, I will try to be specific in the next section.
Jurisdiction
In a situation where the high court cannot oversee the proceedings, the magistrate Court being a court of summary jurisdiction can enforce such order of maintenance, although it is subject to its jurisdictional limit. There is a single jurisdiction for the High Court as any High Court of any state of the federation can exercise jurisdiction irrespective of where the parties to the proceedings are domiciled.
Section 9(2) of the Matrimonial Causes Act sums up the essence of this factor. It states that in order for the transfer of any matrimonial proceedings in a court to be possible, it should be commenced in another Court reason being that the first Court is not convenient for the parties.
Compulsory Conference
In a situation where there are strong contentions between spouses, the judge may call for both parties to appear in court for a conference. This arrangement is usually made in cases where both parties have to make a decision on child custody and the sharing of property.
When the judge initiates a compulsory conference the facts of the case notwithstanding, both parties are compelled by the law to make an appearance at the scheduled date.
In such an arrangement, the scope or extent of such disagreement, as directed by the judge is subject to the discretion of the court.
Rate Of Divorce In Nigeria
According to resources available to me as at the time of writing this article, the rate of divorced couples here in Nigeria is rather very low. An estimate of 0.2% men to 0.3% women are recorded to have legally filed and finalized a divorce procedure. Low right? And yet another record by the National Bureau of Statistics states that less than 1% actually admit to being divorced.
Funny right? It is rather devastating to see and hear about broken marriages everywhere. The rate of domestic violence, infidelity habitual drunkenness of one spouse and other related mishaps remain on the high. Yet, it isn’t uncommon to witness situations where partners sit tight through the turmoil hoping for better days ahead.
To file a divorce, your reasons should be able to stand under these grounds officially recognized by the law. There are several reasons why the need for divorce arises, common reasons include the following :
- Adultery: infidelity on the part of either party can lead to a serious breach of trust. At this stage, being with someone you don’t trust becomes unreasonable and divorce becomes the most valid alternative
- Domestic violence: this is one of the worst experience any party in a marriage can suffer. Yes, any party. Although women may suffer more, there are some rare cases of men who get beaten by their wives. Situations like this put a strain on the marriage.
- Lack of intimacy: sexual intimacy plays a vital role in keeping the marriage alive. In its absence, misunderstanding often rises.
- Insanity: the insanity of a partner may result in the spouse wanting to get a divorce. Especially in cases where the mentally – ill party has an irreversible condition.
- Lack of understanding and communication: communication and understanding go hand in hand. When there is healthy communication, understanding is reached. In the absence of understanding due to lack of communication, many misconceptions arise leading to unwarranted problems.
Factors to be considered when taking a divorce in Nigeria
The Two-year rule
According to the provision of Section 30(1) of the Matrimonial Causes Act, proceedings for the dissolution of marriage should not be made or granted audience within two years after the date of the marriage. This act can only be countered by the leave of a court.
The Court can only grant leave in situations where a rejection to the application may cause futile misunderstanding between the applicant and the spouse – section 30(3) Matrimonial Causes Act.
A provision for leave will not be granted on the following grounds.
a) Adultery since the marriage by the respondent and the petitioner is finding it intolerable to live with the respondent – Section 15(2) (b).
b) Where the institution of proceedings for a decree of dissolution is by way of cross-petition.
c) Commission of rape, sodomy, or bestiality – Section 16(1) (a).
d) Wilful and persistent refusal to consummate the marriage – Section 15(2) (a).
Getting a divorce in some cases gets rather ineffective and really stressful. How? Both parties end up spending a lot of time, effort, and money trying to prove that the other party is at fault.
Then there’s the question of who gets custody over the children in the event of a divorce? Having an adequate understanding of who gets to have custody of children( if any) is of utmost importance.
Child Custody – Divorce In Nigeria
Watch this video by BattaBox on Child Custody in Nigeria
What is child custody?
It is the legal right or duty to care for a child in the event of the separation or death of a parent or parents.
The customary law clearly states that the father has the sole right and custody of his children, whether legitimate or illegitimate. In the case where the father is dead, the mother is given the right to the daily care of the child. But a male head of the man’s family is given custody of the child.
Under common law, the father has absolute custody of children when mature. However, the common law has been countered by the TALFORD ACT 1839 and THE CUSTODY OF INFANT ACT 1872. This law gives mother custody of her child if under the age of 16.
In the case of ABIAKAM AND OTHERS V. ABIAKAM, a decision was reached that the father ‘s absolute right to child custody will be revoked because the child is of tender age and still requires the care and guidance of the mother.
If a child is born out of wedlock, under customary Law, the father is given rights of custody over the child. Although the father has absolute custody, it is important that the child’s interest is taken into account. Section 71(1) of the Matrimonial Causes Act, gives room for taking into consideration the interest of the child before a final decision is made.
In the case of AFONJA V. AFONJA, the child preferred to stay with the mother. Why was this? The father preferred to leave the child with his Sister when school was in session. But spends time with the child only during holidays. For a child going through the emotional consequences of separated parents, this only made things worse. A decision was reached in favor of the child’s interest to stay with his mother to receive better care.
In the process of a divorce, knowing the provisions made for the custody of your child is very essential. The above section aided with additional research should arm you with the knowledge you need.
In my opinion, no matter who gets custody of the child, a mutual agreement should be made on visitation periods. This helps in giving the child a certain kind or form of relationship with both parents.
What about property sharing? How would the property be shared between parties? Let’s address all necessary details in the next section.
Divorce In Nigeria – Property Sharing.
Except the couples agree to uncontested terms of a divorce, there are policies put in place that guide the sharing of assets and property.
You may ask yourself, what is an Uncontested divorce? Well, An uncontested divorce is a situation where there is no opposition on the part of either party based on terms stated in the divorce petition.
Both parties agree to the divorce and the terms that concern the sharing of property or child custody. However, in a case of complete agreement, especially in the area property sharing, a deal reached.
Section 72 (1) of the Matrimonial Causes Act provides that :
The court may in divorce proceedings under the Act by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of the marriage, such a settlement of property to which the parties are or either of them is, entitled as the court considers just and equitable on the circumstances of each case.
It is necessary to note that non-financial contributions made by the wife (e.g carrying out domestic chores) cannot be considered as an equal contribution to the accumulation of their “joint wealth”. In cases where wealth is the be divided, such a spouse (wife or husband) isn’t lawfully entitled to any asset bought by the “bread winning” spouse.
However, in a situation where equal efforts have been put into the accumulation of wealth by the husband and wife, if either party doesn’t contend with the other, wealth is to be shared 50/50.
In light of the above discoveries, let’s understand the concept of a 50/50 share of property better using our normal everyday lives as a case study.
In the case between Kafi v. Kafi, the respondent (the wife) claimed that the property at 15, Adeola Adeleye Street, Ilupeju, Lagos was jointly purchased and developed by the appellant (her husband) and herself. Her husband however contended with her claim of ownership of the property. But there was evidence of her contribution to the building of the property. In an affidavis sworn by the respondent, the following claims were made.
That I managed the medicine shop at IA Ereja Street, Ilesha when the petitioner moved to Lagos in June 1987 to open the medicine shop at Obun Eko, Lagos.
That I was responsible for the care and feeding of all the company’s customers who came from then Eastern Nigerian and Cameroon to purchase medicine from petitioner.
That apart from contributing morally and financially to the petitioner’s wealth and towards the construction of the building built in the name of the petitioner, I was responsible for:
- Buying of building materials needed by the workmen on the building sites
- Supervising the workmen at sites most especially when the petitioner was away on business trips, holidays or indisposed
- Preparing food for workers building the house and sometimes fetching and providing workers with water for use from Surulere to Ilupeju with the scarcity of water at Ilupeju
- Drafting of all business letters of Ebenezer Chemist Ltd. to foreign manufacturers.
The court held her contributions to the development of the business and property as a valid reason for the success of the business. From the evidence provided in the case briefing, it is easily understood that she was very much involved in the daily activities of the business. She was given the property, and the appellant was awarded other properties.
Consequences Of Divorce In Nigeria
Divorce has an awful effect on all parties involved. The false standard that has been created in our modern day society has led to many failed marriages.
What do I mean?
Standards like not getting married before a certain age often cause young ladies to rush into marriage. Many couples turn out to be unprepared for the emotional requirements of marriage.
For the children, growing up in a broken home exposes them to an “emotional roller-coaster” that eventually takes a toll on their mental health and overall well being.
The communication link between parents and children may also suffer a strain. Why? Children may hold their parents as the cause for the divorce. Low self-esteem and lack of trust, depression are also some negative traits that children tend to grow with.
The absence of a mother’s of father’s love may cause them to seek out ways to fill the gap with unhealthy relationships and habits. In all, divorce exposes children to a torrent of information that does not aid healthy development.
My take on this is that in a situation where children are involved, parents should try to come to an agreement with their children for real reasons and not just for their personal interests.
Surely, divorce must have an effect on women too. Women that go through this phase often never envisioned themselves in such a situation. The feeling of isolation and depression often seeps in. Facing the world alone may even seem scary. Women in this category often have lasting trust issues, which may cause them to have more failed relationships.
In some societies, these women may even be treated as ‘cast aways’ and failures. But why should it be so? Having a divorce may not be the best decision, but it’s a far better choice compared to enduring a toxic relationship. Toxic relationships often lead to several episodes of agony and irreparable damage.
But yet again, this depends on your definition of what a “toxic relationship” is. Choosing to abandon a relationship, particularly a marriage relationship at the first instance due to trivial misunderstanding is strongly advised against. Very importantly, one should know when to draw the line between fighting for a relationship and enduring torture.
This might be particularly harder for women who don’t have friends or family to confide in or be there for them.
When evaluating the effect of divorce in Nigeria, the consequences don’t just stop at the people involved. The consequences spread to other parts of the individual’s life which may, in turn, affect overall productivity. The experience and the strong negative emotions attached to it form a core part of the individual’s attitude and approach to situations.
Sample Of Divorce Petition – Divorce In Nigeria
As stated by Section 54(1) Matrimonial Causes Act, a divorce proceeding is to be commenced by making available a petition.
What does a divorce petition contain? How is it structured? Can you prepare the petition yourself? Let’s find out. Below are the details that make up a divorce petition.
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- Petition number.
- Status of parties.
- Full names, occupation, and address of each of the party to the proceeding. Name of the wife immediately before marriage.
- Particulars of the marriage.
- Particulars of birth of the parties to the marriage.
- Particulars relating to domicile or residents of the marriage in Nigeria.
- Particulars of cohabitation of the parties to the marriage and its ceasing.
- Particulars of children of the parties to the marriage and the children of either party to the marriage.
- Particulars of previous proceedings between the parties to the marriage, if applicable
- Facts relied upon but not evidence by which the facts are to be proved. Facts to support ground(s) for divorce.
- Condonation, connivance, and collusion.
- Proposed arrangement for children.
- Custody.
- Maintenance and settlement of property.
- Reliefs being sought
- Address for service on Respondent.
How Long Does It Take to Complete A Divorce Process In Nigeria
One of the major questions divorce lawyers get is how long does a divorce process take? In Nigeria, the divorce of a statutory marriage in a High Court may never be less than 6 months.
Whether there is contention or not, the time frame in most cases is the same. Although, a divorce procedure may take up to two(2) years if there is a lot of contention from both parties.
Where as carrying out a divorce of a customary marriage may be as quick as 3 months In a customary court. Generally, a divorce is faster where there are no contentions.
Desiring to have a quick divorce within a to two months could make you fall into the trap of consulting a fake lawyer.
Serving of Divorce Papers – Divorce In Nigeria
The Petitioner authorizing his or lawyer to institute a divorce petition usually commences the divorce process. Such a petition will be served on the husband or wife to be divorced and such spouse has up to 28 days to respond to it.
The Court may then proceed to give judgment and dissolve the marriage where the party served the divorce petition and hearing notices failed to respond by filing an answer to the petition.
A party who has been served with a petition for divorce, but believes that all facts contained in the petition that was served on him or her are wrong and such party wants the court to dissolve the marriage for reasons other than the ones given by his/her spouse may also contact a lawyer to file what is known as a cross-petition against his or her spouse, praying the court to still go ahead to dissolve the marriage, but on different reasons from the ones initially alleged by his or her spouse.
Online divorce service and Divorce lawyers In Nigeria
Although this is yet to be available in Nigeria, it definitely makes divorce proceedings faster and more efficient. Leaving the court time to cater for other pressing and ever piling issues.
This service if incorporated will enable users (petitioners) to complete all required steps for divorce online with adequate guidance. From payment of required fees to uploading of supporting evidence every single step is well catered for.
According to research, 1,000 petitions have been issued through the new system during the recent pilot phase. Additionally, statistics have shown that nine out of every 10 users of the system turned out to be satisfied with the service. This system, if made available for divorce proceedings in Nigeria, will make the process a whole lot faster and less tedious.
With this service, court staff will be able to give more time to dealing with complex divorce forms. It is no surprise that this simpler and less technical online service has already contributed to a 95 percent drop in the number of applications being returned because of mistakes.
That said, which divorce services do we have available in Nigeria? Well, there a lot of qualified lawyers that handle divorce cases perfectly. Listed below are some qualified lawyers and law firms available in different locations.
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- Osuya & Osuya Law Firm: Situated in Abuja, Nigeria. This is a reputable law firm.
- Dewpoint Legal Practitioners: this legal service provider is located in Lagos, Nigeria. Fully equipped with capable lawyers to cater for all your legal needs.
- Metropolitan Partners: This firm has offices in Rivers State and the Federal Capital Territory, Abuja, Nigeria. Dial +234 84 302741 to contact a lawyer of this firm and be assured of quality.
- Kentuadei Adefe Legal Practitioners, Mediators & Arbitrators: established in 2003, this legal service provider is operational in Bayelsa and Yenagoa.
- Naija Legal Talk: this legal service provider is located at Ikeja, Lagos state, Nigeria.
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Meanwhile, you can also reach out to Deedee via this email – admin@deedeesblog.com if you need professional help on mediation and online divorce services
Conclusion – Divorce In Nigeria
In essence, for a divorce proceeding to start up smoothly and be approved , the facts of the petition must be in line with the Matrimonial Causes Act. The amount of time spent on a case is a major determinant of how much the overall cost of the divorce will amount to. Why? This is because lawyers charge their clients according to the amount of work done.
We hope you have found this information on divorce in Nigeria useful. Following the guidelines and instructions, we have provided here is sure to give you a stress free solution. We will love to entertain your questions and hear about your experience(s). Don’t hesitate to leave a comment and share this post.
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