by Samuel Okolie
There is a popular aphorism that says that; “what God has joined together let no man put asunder”. While there is an element of truism to that aphorism, it is submitted that it is the duty of man to put an asunder to what God has not joined together; and there is no better way to do that than to resort to court for legal remedies to put an end to any traumatic marriage and free the parties from the attendant misery and pain they are living with under the guise of marriage.
For purposes of this write-up, I will be concentrating on dissolution of marriages contracted under the Matrimonial Causes Act Cap M7 L.F.N 2004. Colloquially referred to as court marriage or statutory marriage, marriage under the Act means monogamous marriage; that is a marriage between one man and one woman, excluding all other forms of marriages, like gay marriage, polygamous marriage or marriage contracted under the various native laws and custom of the various tribes in Nigeria. Also for a marriage to constitute a marriage under the Act, the marriage must have a marriage certificate issued by a government approved marriage registry or a licensed place of worship. The mere fact that a marriage was celebrated in church does not constitute a marriage under the act, such a marriage must comply with the requirement of the act to be a statutory marriage. A church marriage without more is a customary marriage and will not enjoy the benefits of a statutory marriage, except the church is licensed to celebrate marriages -see nwangwu vs ubani (1997) 10 N.W.L.R Pt 526 p559
REASONS FOR SEEKING FOR A DIVORCE
There are plethora and avalanche of factors which makes marriages breakdown. Some of these factors will be classified under two headings:
(1) Poverty and (2) Adultery.
With respect to poverty, money is the life wire of every marriage. It brings comfort and stability to marriages. The absence of money makes either of the partners to resort to gambling, excessive intake of alcohol, drugs and finally crime which will definitely affect and lead to the collapse of the marriage. The Holy bible in 1 Timothy Chapter 5 vs. 8 gives credence to the importance of money and evil effect of poverty to marriages when it states that; “if anyone does not provide for his relative and especially for members of his household, he has denied the faith and is worse than an unbeliever”. With respect to Adultery, nothing kills a marriage faster than an adulterous partner; it is cancerous to marriage. A situation where a partner commits incest by sleeping with his or her biological child, or the husband impregnating another woman, or having sex with the maid, or the wife having a baby for another man while married or either of the partner having multiple sex partners outside the marriage, will create a deep schism and scar in the marriage which will ultimately lead to divorce.
GROUNDS FOR DIVORCE
There are different procedures and forms available to a petitioner who seeks to bring an end to his or her marriage under the Act. They include (a) Dissolution of marriage, (b) Nullity of a voidable marriage (c) Nullity of a void marriage (d) Judicial separation (e) Restitution of conjugal right and (f) Jactitation of marriage. However, the most ubiquities form of petition under the Act , is the petition for decree of dissolution of marriage. It is the most widely litigated petition. In fact, out of all the petitions that pour into the registry of the high court, almost 95% of them is for decree of dissolution of marriage. while the remaining 5% is shared among the other forms of petition. It is on this basis that decree for dissolution of marriage would be the focused on in this write-up.Under section 15(1) of the matrimonial causes Act, the sole ground for dissolution of marriage under the Act is that the marriage has broken down irretrievably- Ekrebe vs. Ekrebe (1999) 3 N.W L.R (Pt.596) 594.By this, the Act has created only one ground for divorce but the facts which may lead to a marriage breaking down irretrievably are provided for in section 15(2) (a)-(h) of the Act once the petitioner has satisfied the court of one or more of the following facts:
(a) That the respondent has & willfully and persistently refused to consummate the marriage;
(b) Adultery and intolerable to live with the respondent;
(c) Behave in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) That the respondent 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 period of at least 2 years immediately preceding the presentation of the petition and the respondent does not object to a decree been granted ;
(f) Parties have lived apart for a continuous period of at least 3 years immediately preceding the presentation of the petition;
(g) Failure to comply with a decree of dissolution of conjugal right made under the Act;
(h) Presumption of death. The petitioner must prove at least one of the facts contained in Section 15(2) (a)- (h) of the Act before he can succeed. Where the petitioner fails to so prove, the petition for dissolution will be dismissed. The mere fact the petitioner alleges that the respondent is a witch, or is diabolic or the mere accusation that the respondent is not a good person will not be enough reason to dissolve a marriage.
Jurisdiction here simply means, the court that has the power to entertain divorce proceedings. Section 2 of the matrimonial causes Act states that “a person may institute an action under this Act in the high court of any state of the federation and the high court of the federal capital territory”. Thus, it is the High court of the thirty-six (36) of the federation and the federal capital territory that has jurisdiction over divorce proceedings. If divorce proceeding is brought before any court aside the high court of a state, the proceeding is a nullity ab initio. A simple analogy will suffice here. If Mr A marries Mrs A in a marriage registry in Port Harcourt, Rivers State in the year 2010 and in 2015 Mr. A and Mrs. A moved to Lagos after their marriage but later Mrs A was seduced by one rich politician and Mr. A wants a divorce. Where would Mr. A go to institute the proceeding for divorce?. The law is that he may go back to Port-Harcourt in Rivers State or he may go institute the divorce proceeding in Lagos where he is currently residing or that he can go to any state of the federations and the proceedings will be competent. However, consider a situation where Mr. A while still residing in Lagos and his wife, Mrs. A is also residing in Lagos decided to take the matter to the High Court of Kano state so that the proceedings will be inconvenient and difficult for Mrs. A, though the proceeding is still valid and competent, but the principles of ‘Forum Convenience’ will be brought to play in the issue of Jurisdiction so as to ameliorate the issue of Inconvenience and the power of the court to transfer such petition may be invoked. Such power has been given to the Court by Section 9 of the Matrimonial causes Act. Under that Section, the courts are empowered to transfer Matrimonial causes to any court in any other state if it is in the interest of Justice that such divorce proceeding be dealt with in that other Court – See Adegoroye vs. Adegoroye (1996) 4 NWLR pt 433 p. 712, Ani vs. Ani (2002) 6 N.W.L.R pt 762 .
For the court to have Jurisdiction for a petition for dissolution of Marriage, the petition must be accompanied by the following documents:
(a) A verifying Affidavit to verify the fact stated in the petition
(b) A notice of the petition in appropriate form i.e. forms 8, 9 or 10
(c) A form of acknowledgement of service by the respondent and;
(d) A copy of the Marriage certificate
It should also be noted that there are instances where the marriage certificate has been lost, destroyed or one of the spouse has refused to give up the marriage certificate as he or she is unwilling to submit to divorce proceedings The proper step under this scenario is for the petitioner to apply for the certified true copy (CTC) of the marriage certificate at the appropriate marriage registry.
The matrimonial causes Act and Matrimonial causes Rules do support settlement and resolution of dispute by encouraging reconciliation among parties. No petition would properly lie in court for consideration without the petitioner or his counsel showing the court that they have made effort to settle the aggrieved parties, but such moves for settlement has been futile. The reason for this is that, an aggrieved petitioner may take a decision in anger and institute a divorce proceeding, and also for the court to stem the ever increasing rate of divorce in our society – See order II, rule 33 – 34 matrimonial cause rule.
Under the Nigerian legal stratosphere, a marriage can only be ended in two ways -by the death of one of the partners or by order of court. It is usually advisable that parties should resort to court when the marriage becomes turbulent and unbearable for the parties, as a stubborn insistence to hold on to a tumultuous marriage, despite glaring evidence that the marriage has broken down irretrievably may lead to the marriage being dissolved by the death of one of the parties.
Okolie is a legal practitioner with the law firm of Mackstoke Partners. He can be reached through the following: 08066756987, Samuelokolie78@gmail.com