- COURT PROCESSES REQUIRED FOR DISSOLUTIONS OF MARRIAGE
- COURT PROCESSES REQUIRED FOR NULLITY OF MARRIAGE
- LEAVE OF COURT
- FILING OF PROCESSES
- THE PETITION DECREE OF DISSOLUTION OF MARRIAGE
Court Processes Required for Dissolution of Marriage
1.Dissolution of marriage, commonly referred to as divorce, is the legal process by which a marriage is formally terminated. In Nigeria, this process is governed primarily by the Matrimonial Causes Act (MCA) and the Matrimonial Causes Rules (MCR).
2.Grounds for Dissolution- According to Section 15(1) of the MCA, a marriage can only be dissolved if it has broken down irretrievably. See section 15(2) which outlines the specific grounds for proving an irretrievable breakdown.
3. Filing of the Petition- The process begins with the filing of a petition for dissolution of marriage in the appropriate High Court. The petition must state the ground(s) for seeking the divorce and should include particulars of the facts relied upon to establish those grounds accompanied by an affidavit verifying the facts of the petition under Section 37 of the MCA.
4. Service of the Petition- This is where the petition and accompanying documents must be served on the respondent. This can be done through personal service or substituted service if personal service is impracticable. See section 38 of the MCA.
5. Respondent’s Response- This is where the respondent may file an answer to the petition, either admitting or denying the allegations. The respondent can also file a cross-petition, seeking relief on different grounds. See section 41 of the MCA.
6. Hearing- The case proceeds to trial where both parties present their evidence. This may include oral testimony, documentary evidence, and witness statements. The court then evaluates the evidence to determine if the marriage has indeed broken down irretrievably. See section 82 of the MCA.
7. Decree Nisi and Decree Absolute
a.Decree Nisi: This happens if the court is satisfied that the marriage has broken down irretrievably, it grants a decree nisi. This is a provisional order that does not terminate the marriage immediately. See section 57 of the MCA.
b.Decree Absolute: This is where decree nisi becomes absolute after three months, unless there is a valid objection. The petitioner must apply for the decree nisi to be made absolute, at which point the marriage is formally dissolved. See section 58 of the MCA.
Court Processes Required for Nullity of Marriage
1. A decree of nullity is a legal declaration that a marriage was never valid. Grounds for nullity are divided into void and voidable marriages.
2. Grounds for Nullity
a.Void Marriages: These are marriages that are considered null from the beginning (ab initio).
b.Voidable Marriages: These are marriages that are valid until annulled.
3. Filing of Petition- The process begins with the filing of a petition for nullity of marriage in the appropriate High Court. The petition must state the ground(s) on which nullity is sought and provide particulars of the facts relied upon. See section 39 of the MCA.
4. Service of the Petition- This is where the petition must be served on the respondent through personal service or substituted service if necessary. See section 38 of the MCA.
5. Respondent’s Response- This is where the respondent may file an answer to the petition, either admitting or denying the allegations.
6. Hearing- This is where the case proceeds to trial, where the court hears evidence from both parties. The court must be satisfied that the grounds for nullity are proven before granting a decree of nullity. See section 82 of the MCA.
Leave of Court
Leave of court refers to the permission granted by the court to perform a certain act. This is required in specific circumstances to ensure proper judicial oversight.
Situations Requiring Leave of Court
1.Filing within two years of marriage: See section 30(1) of the MCA which provides that a petition for dissolution or nullity of marriage filed within two years of the marriage requires leave of court.
2.Appeals: This is where certain appeals and applications in matrimonial causes may require leave of court. See section 95 of the MCA.
Application for Leave
To apply for leave, the party seeking leave must file a motion supported by an affidavit stating the reasons for the application and the court will hear the application and may grant or refuse leave based on the merits of the case.
Filing of Processes
Filing of processes involves submitting various legal documents to the court for consideration and action.
Key Documents in Matrimonial Proceedings
1.Petition: This is the initiating document for divorce or nullity, detailing the grounds and facts relied upon.
2.Affidavit: This is a sworn statement supporting the facts of the petition.
3.Notice of Address for Service: This indicates where subsequent documents should be served on the parties.
Service of Processes
The petitioner must serve the respondent personally, ensuring they receive the documents directly and if personal service is impracticable, the court may order substituted service, such as by newspaper publication or delivery to a third party. See section 38 of the MCA.
Petition for Decree of Dissolution of Marriage
1. Petition
The petition must include:
a.The full names and addresses of the parties.
b.The date and place of the marriage.
3.The ground(s) for seeking dissolution.
4.Facts supporting the ground(s).
5.Details of any children of the marriage and arrangements for their care.
2. Decree Nisi- This is a provisional order indicating that the court is satisfied the marriage should be dissolved, but it does not terminate the marriage immediately. The decree nisi allows time for any objections to be raised. See section 57 of the MCA.
3. Decree Absolute- This is the final order that legally terminates the marriage. The decree absolute can be applied for three months after the decree nisi is granted, provided there are no valid objections. See section 58 of the MCA.
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