UNIT 22 - BARS TO GRANTING DECREE OF JUDICIAL SEPARATION AND DIVORCE

TOPIC OF THE DAY

- THE BARS OR DEFENCES TO PETITIONS FOR DIVORCE OR JUDICIAL SEPARATION

- ABSOLUTE BARS

- DISCRETIONARY BARS

The bars or defences to petitions for divorce or judicial separation

In Nigerian matrimonial law, there are two categories of bars that can prevent a petition for divorce and these are absolute bars and discretionary bars. These bars are established under the Matrimonial Causes Act (MCA) and relevant case laws. Understanding these bars is crucial for both petitioners and respondents in divorce cases. Below, I will discuss these bars, providing relevant sections from the MCA and case law to illustrate how they are applied.

Absolute Bars to Divorce

Absolute bars are defenses that, if proven, automatically prevent a court from granting a divorce, regardless of any other circumstances. These bars are strictly applied and leave no room for judicial discretion.

1. Collusion- this occurs when both parties agree to fabricate or exaggerate grounds for divorce in order to deceive the court. See section 26(3) of the Matrimonial Causes Act which provides that if it is established that there is collusion between the parties to obtain a divorce, the petition will be dismissed outright and the case of Osayande v. Osayande (1973) NMLR 98 where the court dismissed the divorce petition after finding that both parties had colluded to fabricate evidence of cruelty.

2. Connivance- this involves one spouse consenting to or encouraging the other's misconduct, which is later used as a ground for divorce. See section 26(1) of the MCA which states that a divorce petition may be defeated if it is shown that the petitioner connived at the respondent's misconduct and see also the case of Adelakun v. Adelakun (1961) WNLR 17 where the petitioner’s encouragement of the respondent’s adultery led to the dismissal of the divorce petition on the grounds of connivance.

3. Condonation- this refers to the forgiveness of a matrimonial offense by the aggrieved spouse, with the intention of resuming or continuing the marriage. See section 26(2) of the MCA which provides that if the petitioner has forgiven the respondent and continued to live with them after becoming aware of the matrimonial offense, this can bar the petition and the case of Dunham v. Dunham (1950) 1 FSC 29 where the petitioner’s continued cohabitation with the respondent after discovering adultery resulted in the court recognizing condonation as a valid defense.

Discretionary Bars to Divorce

Discretionary bars are defenses that, if proven, it gives the court the option to refuse a divorce. The court has the discretion to consider the circumstances of the case and decide whether to grant or dismiss the petition.

1. Delay in Filing Petition- this is where unreasonable delay in filing a petition after the grounds for divorce have arisen can be a discretionary bar. See the case of Aina v. Aina (1993) 3 NWLR (Pt. 278) 238 where the court dismissed the petition due to the petitioner’s significant delay in filing for divorce after discovering the respondent’s misconduct.

2. Recrimination- this involves the respondent proving that the petitioner is also guilty of a matrimonial offense that could be grounds for divorce. See section 26(4) of the MCA which allows the court to dismiss a petition if the petitioner is found to have committed a similar offense and see also the case of Nwankwo v. Nwankwo (1981) 1 NCLR 288 where the court dismissed the petition after finding that the petitioner’s own misconduct significantly contributed to the breakdown of the marriage.

3. Hardship to the Respondent- this happens if granting the divorce would cause undue hardship to the respondent, the court may exercise its discretion to refuse the petition. See section 26(4) of the MCA which provides that the court may refuse a divorce if it would result in significant hardship to the respondent and see also the case of Adeyemi v. Adeyemi (1976) 1 NMLR 36 where the court considered the potential hardship to the respondent and dismissed the divorce petition to prevent undue suffering.

4. Conduct Condemned by the Petitioner- this happens if the petitioner’s own conduct has contributed to the respondent’s behavior or is equally reprehensible, it can serve as a discretionary bar. See section 26(4) of the MCA which provides that the court may dismiss the petition if the petitioner’s conduct has directly contributed to the matrimonial offense complained of and see also the case of Okoro v. Okoro (1999) 10 NWLR (Pt. 622) 517 where the court found that the petitioner’s misconduct played a significant role in the marital breakdown, leading to the dismissal of the petition.