“Till death do us part…”
The above vow, common in most Christian marriage ceremonies, is a vow that a marriage is supposed to last for as long as the couple live. Unfortunately, this is no longer always the case. It is an unpleasant reality that married couples do fall out of love and usually want to part before death comes along. Although, the law respects the sanctity of marriage and has put some safeguards to ensure that the marriage institution is preserved, like all human endeavours, those safeguards are usually not sufficient enough to make a marriage last a lifetime.
This article is aimed at educating and enlightening the reader on how a marriage can be brought to an end by dissolving it; commonly known as “Divorce”. It also deals with other related issues such as maintenance of a spouse and children, as well as custody of the children.
At the beginning of our series on marriage we identified the various types of marriages that can be contracted in Nigeria; we identified statutory marriage, customary marriage and Islamic marriage. This article will deal with how to bring a statutory marriage to an end.
PROOF OF STATUTORY MARRIAGE
The very first requirement of the law is that the marriage sought to be ended must be a statutory marriage. In order to ascertain that the marriage is a statutory marriage, it is usually essential to provide a marriage certificate, or a certified true copy of the marriage certificate. Where either of these is not available, then one can provide a certified copy of the entry in the marriage register as proof of a valid marriage. It is important to ascertain that the marriage sought to be ended is a valid statutory marriage, else the court would have no jurisdiction to end the marriage. If it is a mere church ceremony that the couple underwent, then there would be no need to go to the court for the dissolution of the marriage, as there is in fact no valid marriage in the eyes of the law.
THE TWO YEAR RULE
The law stipulates that a marriage which is under two years cannot be dissolved. So when the marriage is less than two years the parties to the union cannot get a divorce. However, in certain exceptional cases, a marriage that is under two years can be dissolved by the court. In such cases, the party who is seeking the divorce must satisfy the court that refusal to permit him/her to institute an action for the dissolution of the marriage would cause exceptional hardship on him/her or that the case is one of exceptional depravity on the part of the other party to the marriage. However, in the following cases, the marriage can be dissolved even if it is not up to two years:
1. Where the Respondent wilfully and persistently refuses to consummate the marriage. Consummation of marriage refers to full sexual intercourse between the couple. When the respondent intentionally refuses and continually refuses to consummate the marriage, then the marriage can be dissolved, even if it is not up to two years; or
2. Where since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. It is not sufficient that the respondent has committed adultery, the petitioner must find it unbearable to live with the respondent because of that; or
3. That since the marriage the respondent has committed rape, sodomy or bestiality.
Before the court dissolves a union, it would satisfy itself that there is no possibility of reconciliation between the parties; thus, the parties are usually required to have explored the possibility of reconciliation, sometimes the court would refer the parties to mediation with the purpose of trying to reconcile them. The court would only go ahead to dissolve a marriage when every attempt at reconciliation has failed.
GROUND FOR DISSOLUTION OF MARRIAGE
To dissolve a marriage in Nigeria, it must be proven that the marriage has “broken down irretrievably”, meaning the reason for the petitioner applying to dissolve the marriage is so severe that the marriage cannot be saved. However, a petitioner for the dissolution of a marriage is required to prove any of the following eight facts to the satisfaction of the court in order to establish that the marriage has broken down irretrievably. They are:
1. That the respondent has wilfully and persistently refused to consummate the marriage. This simply means refusal to have sexual intercourse. If the parties have had sexual intercourse even if it is just once, the marriage is deemed consummated and the petitioner cannot rely on this fact to get a divorce.
2. That the respondent has committed adultery since the marriage and the petitioner finds it intolerable to live with the respondent. It is important that a petitioner who wants to rely on this fact must prove not only that the respondent has committed adultery, but the fact that he/she finds it unbearable to tolerate the infidelity of the respondent.
3. That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This clause is wide enough to accommodate anything at all that the petitioner finds intolerable such as rape, sodomy, bestiality, habitual drunkenness or intoxication, criminal activities, domestic violence and even unsound mind.
4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately before the petitioner approached the court for an order for the dissolution of the marriage. “Desertion” means to leave or abandon the matrimonial home and spouse without any justification. Where the respondent has by his conduct or attitude behaved in such a manner that the petitioner cannot reasonably be expected to continue to live with him/her, then notwithstanding that he/she has not left the matrimonial home, such a person would be deemed to have deserted the petitioner. This is known as “constructive desertion”.
5. That the parties to the marriage have lived apart for a continuous period of at least two years immediately before the petitioner approached the court for the dissolution of the marriage and that the respondent does not object to the marriage being dissolved. A petition for the dissolution of marriage can be brought under this head if the parties have lived apart for at least two years and both of them consent to the dissolution of the marriage.
6. That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition for the dissolution of the marriage. In this case, the respondent need not consent to the dissolution of the marriage.
7. That the other party to the marriage has for a period of not less than one year failed to comply with a decree or restitution of conjugal rights. A decree of restitution of conjugal rights is an order of court directing a party in default (that is a party that has deserted his/her spouse) to resume cohabitation with the other partner and to resume the fulfilment of marital duties owed the other spouse. Non-compliance with the order for the restitution of conjugal rights could give a party the right to petition for the dissolution of the marriage.
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead. Where a petitioner wants to rely on this fact for the dissolution of marriage, then he/she must establish to the satisfaction of the court that the respondent has been absent from him/her for a period of seven years and that the petitioner has no reason to believe that the respondent is still alive.
After the petitioner has proven any of the facts above and the court is satisfied that the marriage has truly broken down irretrievably, the court would make an order dissolving the marriage.
There are two orders that a court will make in dissolving a marriage. The first order is called a “Decree Nisi” while the second order is called “Decree Absolute”. The Decree Nisi is made first and, after three months, a petitioner can apply for the decree nisi to be made absolute.
A decree nisi gives a party the opportunity to appeal the dissolution of the marriage but once the court grants a decree absolute, there is no longer any right to appeal the dissolution.
A Decree Nisi can be described as a provisional decree or order by the court stating the date on which the marriage will end unless a good reason not to grant a divorce is produced. It must be noted that this order does not immediately dissolve the marriage. The couple can still be said to be married, and in the event of death of either of the parties during the subsistence of the decree nisi, the surviving party would still be entitled to the privileges and benefits of a surviving spouse. This is because legally, the marriage has not yet been dissolved. The marriage is only truly dissolved and ceases to exist when the Decree Absolute is made. Only then does the divorce become complete.