FAMILY LAW IN NIGERIA: A TAPESTRY OF MARRIAGES AND DISSOLUTIONS (Part 2): BY GONTUL KENUBEH TIMOTHY, ESQ.

INTRODUCTION

In Part one of this article, we were able to observe how marriage is a significant institution in Nigeria, how it governed by a multifaceted legal framework, and recognizing the three distinct types of marriages in Nigeria: Statutory Marriage, Customary Marriage, and Islamic Marriage. I am going to make a further discuss on marital challenges and how such can lead to divorce. The process of divorce, or dissolution of marriage, varies depending on the form of union entered into by the parties. This article provides an overview of the divorce laws in Nigeria pertaining to each marriage type, citing relevant laws and cases.

GROUNDS FOR DIVORCE UNDER DIFFERENT LEGAL SYSTEMS

A. STATUTORY MARRIAGE:  Dissolution of marriage statutorily is governed by the Matrimonial Causes Act (MCA). The sole ground for divorce under Section 15(1) of the MCA is that the marriage has irretrievably broken down. See also the case of Adeleke v Adeleke (2017) LPELR-42842(CA). It is important to note that the MCA also provides for void and voidable marriages. A void marriage is one that was never valid from the beginning (e.g. bigamous marriage, marriage within prohibited degrees). A voidable marriage is valid until annulled by a court (e.g. non-consummation, unsound mind, pregnancy by another person at the time of marriage unknown to the petitioner). some grounds for statutory divorce includes:

• Adultery: This is a common ground for divorce as the petitioner needs to prove the adultery. see Nwogwu v. Nwogwu (2019) LPELR-47460(CA). Also, in the case of Blyth v. Blyth (1966) AC 643, it was established that mere commission of adultery is not enough; the petitioner must also find it intolerable to live with the respondent. This principle applies in Nigeria.
• Desertion: If one party deserts the other continuously for at least one year after the petition was filed or that the parties have lived apart for a continuous period of at least two years before the petition was filed. Alternatively, if they have lived apart for three years, no consent from the respondent is required.
• Unreasonable Behavior: Physical or emotional cruelty, misconduct, addiction and other abusive behavior that makes it intolerable for the aggrieved party to live with the other. See Williams v. Williams (1987) 2 NWLR (Pt. 54) 153.
• Irretrievable Breakdown of Marriage: When the marriage has broken down to such an extent that the parties can no longer reasonably be expected to live together. This is often the most commonly cited ground, as it allows for a more flexible approach.
• Failure to Comply with a Decree for Restitution of Conjugal Rights: That the respondent has neglected to adhere to a decree for restitution of conjugal rights for a period of at least one year.
• Presumption of Death: That the respondent has been absent for such a period or in such circumstances as to give reasonable grounds for presuming that they are dead.
• Non-Consummation: That the marriage has not been consummated due to the willful and persistent refusal of the respondent to consummate it. Ogunboye v. Ogunboye (2005) 2 NWLR (Pt. 909) 1.
• Other Grounds: The respondent has, since the marriage, committed rape, sodomy, or bestiality.
• Divorce petitions for statutory marriages are heard in the High Court of a State or the Federal Capital Territory, Abuja. The court, before granting a divorce, has a duty to inquire into the possibility of reconciliation between the parties (Section 11 of the MCA). Ancillary reliefs like maintenance (spousal support), child custody, and property settlement are also determined by the Court before such dissolution.

PROCEDURE FOR STATUTORY DIVORCE:

The first step in the divorce procedure is to file a petition to the state’s High Court, where one or both parties live. The petition asks the court to end the marriage and lists the reasons for divorce. The petition is served to the respondent, who is then given the chance to provide a response. The court will hear testimony from both parties to determine if the marriage has irretrievably broken down or if the respondent rejects the petition.

B. CUSTOMARY MARRIAGE: A customary marriage is one that is accepted by the local laws and traditions of different Nigerian ethnic groups. A man can marry more than one woman, which is known as polygamy. Customary law is mostly unmodified and changes in response to social norms. The laws governing customary marriages and their dissolution range greatly throughout groups.

GROUNDS FOR DIVORCE:

The dissolution of customary marriages is less formal and generally more flexible than statutory divorces. There are no strict, uniform grounds, as they vary according to the customs of each community. It is important to note that in most customary settings, women mostly fall victims of divorce when it comes to customary marriage. Some common grounds include:

• Adultery: Divorce is mostly initiated when such offense is committed by the wife, often entitling the husband to a refund of the bride price. Nevertheless, a man who commits adultery may not be charged for divorce by the wife. Most communities believe that a man is polygamous in nature. Thus, he can not commit the offense of adultery.
• Witchcraft: Accusations of engaging in harmful supernatural practices is a serious ground for divorce in some communities in Nigeria, as it is believed that such acts can bring misfortune to the family.
• Infertility: Inability to bear children, particularly male children, can be grounds for divorce in most communities in Nigeria. And sometimes, be a ground for a man to practice polygamy.
• Abandonment: By either spouse.
• Cruelty: Persistent physical or emotional abuse by either of the spouse is a ground for divorce in other to avoid other critical situations or even death.
• Mutual Agreement: This is a common and often preferred method of dissolution. If both parties agree to get a divorce, then it will stand, and depending on the community, the rights to such divorce would be used to separate the marriage.

PROCEDURE FOR DIVORCE:

The dissolution of a customary marriage can occur through:

• Non-Judicial Dissolution: This typically involves the intervention of family elders or traditional authorities who mediate the dispute. If reconciliation fails, the marriage can be dissolved, often with the refund of the bride price (dowry).
• Judicial Dissolution: Customary courts (and sometimes Area Courts or Magistrates’ Courts) have jurisdiction over customary marriages. A party can petition the court for a formal dissolution based on established customary grounds.
• Refund of Bride Price: The refund of bride price is a crucial aspect of customary divorce, particularly when the wife is seeking the divorce. The amount to be refunded is the full amount or a proportionate part, depending on the circumstances and the particular custom. See Osamwonyi v. Osamwonyi (2000) 10 NWLR (Pt. 675) 438.

C. ISLAMIC MARRIAGE:

Islamic marriage (Nikah) is a union governed by Islamic personal law (Sharia), primarily observed in the Northern parts of Nigeria and by Muslim communities across the country. It is also polygamous, allowing a man to have up to four wives under certain conditions. Islamic law provides various mechanisms for divorce, primarily initiated by the husband (talaq) as seen in the case of Danfulani v. Yahaya (2010) LPELR-9168(CA) or, under certain conditions, by the wife (khul’ or faskh). The principles are largely derived from the Quran and Sunnah, interpreted by Maliki jurisprudence which is predominant in Nigeria. While seemingly straightforward, Islamic law encourages reconciliation and disfavors arbitrary divorce. Islamic courts (Sharia Courts) have jurisdiction over Islamic marriage and divorce matters. See Yusuf v. Adebayo (2012) 13 NWLR (Pt. 1316) 1.

MODES OF DIVORCE:

Islamic law provides several ways for a marriage to be dissolved:

• Talaq (Repudiation by Husband): The husband has the unilateral right to repudiate the marriage by pronouncing “talaq” (I divorce you). This can be done once, twice, or thrice.
• Talaq al-raj’i (Revocable Divorce): A single or double pronouncement of talaq, during which the husband can reconcile with his wife within the ‘iddah’ (This is a waiting period for the divorced woman, typically three menstrual cycles, to confirm she is not pregnant) without a new marriage contract.
• Talaq al-ba’in (Irrevocable Divorce): A triple pronouncement of talaq, which instantly and irrevocably dissolves the marriage. The couple can not remarry unless the wife first marries another man and is eventually divorced or widowed by him (halala).
• Khul’u (Divorce at the Wife’s Instance for Consideration): The wife can seek a divorce by offering a consideration (usually the return of the mahr/dowry or a part of it) to the husband. If the husband agrees, the marriage is dissolved.
• Mubara’at (Divorce by Mutual Consent): Both husband and wife agree to dissolve the marriage by mutual consent. This is akin to khul’u but is initiated by mutual desire rather than solely by the wife.
• Faskh: This is a judicial divorce granted by a Sharia Court based on grounds such as the husband’s impotence, cruelty, or inability to provide for the wife. husband’s failure to supply maintenance, cruelty or ill-treatment, husband’s impotence or serious disease, husband’s prolonged absence, husband’s apostasy from Islam.
• Tafwid (Delegated Divorce): The husband can delegate his right of talaq to his wife at the time of marriage or later. This means the wife can then pronounce talaq on herself under certain conditions.

Faiilure of the husband to provide maintenance, impotence or serious disease, cruelty or abuse, desertion, apostasy, false accusation of adultery by the husband (Li’an).

CONCLUSION

Divorce laws in Nigeria are complex and vary significantly depending on the type of marriage involved. Understanding the specific laws and procedures applicable to each marriage type is crucial for individuals considering divorce. Seeking legal advice from a qualified lawyer specializing in family law is highly recommended to navigate the process effectively and protect one’s rights. The intricacies of customary and Islamic law, in particular, need expert guidance to make sure compliance and a fair resolution.