- HISTORY OF DIVORCE LAW
- THEORIES OF DIVORCE LAW
- PRESENTATION OF DIVORCE PETITION
- THE GROUND FOR PETITION FOR DIVORCE
History of Divorce Law in Nigeria
The history of divorce law in Nigeria is intertwined with the country's colonial past and its diverse legal systems. Nigeria operates a tripartite legal system comprising English common law, customary law, and Islamic law (Sharia). The Matrimonial Causes Act (MCA) 1970 is the primary legislation governing divorce for statutory marriages in Nigeria.
Pre-Colonial Era
Before colonization, divorce in Nigeria was primarily governed by customary laws, which varied significantly among different ethnic groups. Each ethnic group had its norms and practices regarding marriage and divorce. In some cultures, divorce was relatively easy to obtain, while in others, it was more restrictive.
Colonial Era
With the advent of British colonial rule, English common law began to influence the Nigerian legal system. The introduction of the Marriage Act in 1914 formalized statutory marriage and laid the groundwork for the development of statutory divorce laws. However, customary and Islamic marriages continued to be governed by their respective laws.
Post-Independence Era
After gaining independence in 1960, Nigeria sought to harmonize its legal system. The Matrimonial Causes Act (MCA) 1970 was enacted to provide a unified framework for divorce under statutory marriage. The MCA incorporates elements of English divorce law while adapting to the Nigerian context.
Theories of Divorce Law
Several theories underpin divorce law, providing different perspectives on why marriages break down and how the legal system should respond.
Fault Theory
Under the fault theory, one party must be proven to be at fault for the breakdown of the marriage. Grounds such as adultery, cruelty, and desertion are considered faults. The fault theory emphasizes moral wrongdoing and assigns blame, which can exacerbate conflict between parties.
No-Fault Theory
The no-fault theory allows couples to divorce without assigning blame. Grounds like "irretrievable breakdown of marriage" suffice. This theory focuses on the irreparable nature of the relationship rather than the actions of the parties. The MCA 1970 incorporates no-fault grounds for divorce, emphasizing the breakdown of the marital relationship.
Mixed Theory
The mixed theory combines elements of both fault and no-fault theories. It provides grounds for divorce based on both fault (e.g., adultery, cruelty) and no-fault (e.g., irretrievable breakdown). This approach allows for flexibility in addressing the varied reasons for marital breakdown.
Presentation of Divorce Petition
The presentation of a divorce petition in Nigeria involves several procedural steps governed by the MCA 1970 and relevant rules of court. These procedures includes the following;
1.Initiating a Petition- A divorce petition is initiated by filing a petition in the High Court. The petitioner (the person seeking the divorce) must state the grounds for the divorce and provide supporting evidence. The petition should include details about the marriage, children, and any claims for maintenance or property settlement.
2.Service of Petition- This is where the petition must be served on the respondent (the other spouse). Proper service ensures that the respondent is aware of the proceedings and has an opportunity to respond. Service can be effected personally or through substituted service if personal service is impracticable.
3.Respondent's Answer- This is where the respondent may file an answer to the petition, admitting or denying the allegations and raising any defenses. The respondent can also file a cross-petition, seeking divorce on different grounds.
4.Hearing- this happens if the petition is contested, the court will schedule a hearing where both parties can present evidence and arguments. If the petition is uncontested, the court may grant the divorce based on the documents filed.
5.Decree Nisi and Decree Absolute- this happens if the court is satisfied with the evidence, it will issue a decree nisi, a provisional order for divorce. After a specified period (usually three months), the petitioner can apply for a decree absolute, which finalizes the divorce.
Grounds for Petition for Divorce
The MCA 1970 outlines several grounds for divorce in Nigeria. These grounds can be classified into fault-based and no-fault-based categories.
Fault-Based Grounds
1.Adultery: This is where the petitioner must prove that the respondent committed adultery and that the petitioner finds it intolerable to live with the respondent (See section 15(2)(a) MCA 1970).
2.Cruelty: This is where the petitioner must show that the respondent has behaved in a way that makes it unreasonable to expect the petitioner to continue living with the respondent. See section 15(2)(c) MCA 1970 and the case of Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151 where the court provides insight into the application of cruelty as a ground for divorce, highlighting the importance of proving that the respondent's behavior was intolerable.
3.Desertion: This is where the petitioner must prove that the respondent has deserted them for a continuous period of at least one year immediately preceding the presentation of the petition. See section 15(2)(d) MCA 1970 and the case of Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 where the court discusses the ground of desertion and the necessity for the petitioner to demonstrate that the desertion was continuous and without just cause.
No-Fault-Based Grounds
The most significant no-fault ground is that the marriage has broken down irretrievably. See the case of Williams v. Williams (2008) 10 NWLR (Pt. 1094) 146 where the court highlights the application of the ground of irretrievable breakdown of marriage. The court emphasized the need for concrete evidence to prove that the marriage had indeed broken down irretrievably.This can be proven by showing one of the following:
1.That the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent consents to the decree (See section 15(2)(e) MCA 1970).
2.That the parties have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition (See section 15(2)(f) MCA 1970).
3.That the respondent has failed to comply with a decree or order for the restitution of conjugal rights for at least one year (See section 15(2)(g) MCA 1970).
4.That the parties have been separated and have not lived together for a period of at least one year immediately preceding the presentation of the petition (See section 15(2)(h) MCA 1970).
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