• Introduction

Further to your discussions with Andi Daze with regards to the laws and procedure relating to divorce in Nigeria, kindly find below a brief summary of the laws, procedure, requirements and cost for filing a divorce petition.

 

• Marriage in Nigeria

There are two kinds of marriages recognized in Nigeria:

• Customary Marriage – Regulated by customs, customary courts or sharia courts; or
• Statutory Marriage – Regulated by the Matrimonial Causes Act and Matrimonial Causes Rules.

The kind of marriage entered into by the parties will determine:

• The procedure for dissolution of marriage;
• Custody and guardianship of infant children; and
• The court with jurisdiction to entertain matters arising from the marriage.

 

Applicability to your case

As your marriage was conducted at the marriage registry, it is classified as a marriage under the Matrimonial Causes Act (the “Act”). As such, the court with jurisdiction is the state High Court. In essence, for disputes arising from marriages under the Act, there is a single judicial division, which allows parties to institute an action in any High Court in Nigeria, irrespective of where the marriage took place in Nigeria.

 

• Judicial Separation

Judicial separation is one of the decrees a Court can pronounce under the Matrimonial Causes Act. It is an alternative option to divorce and is granted by the Court to enable the couple live apart even though they still remain legally married to each other. Therefore, neither spouse is allowed to remarry because such separation does not affect the rights, status, and obligations of the parties to the existing marriage.

 

The grounds upon which a judicial separation can be instituted are that:

1. The Respondent has committed adulteryand the Petitioner finds it intolerable to live with the Respondent;
2. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
3. The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
4. The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted;
5. The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

A decree of judicial separation, which can be applied at any time during the marriage, may also be discharged at any point after it is granted. Where the parties voluntarily resume cohabiting, a Court can discharge the decree of judicial separation by both parties applying to the Court for an order discharging the decree as provided under the Act.

 

• Divorce

The grounds for divorce as recognized in the Matrominial Causes Act are highlighted below. A petition for divorce must be based on one or more of the following grounds:

 (a)       That the respondent has willfully and persistently refused to consummate the   marriage;  

(b)        That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;  

(c)        That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;  

(d)        That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;  

(e)        That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the   respondent does not object to a decree being granted;  

(f)        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;  

(g)        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 made under his Act;  

(h)        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.

 

Petition for Divorce

A petition for divorce must include the following information:

1. Parties – Full names, addresses and occupation;
2. Marriage – Particulars of marriage, the place of solemnization, nature of solemnization;
3. Birth – Date of birth and place of birth of each party. Where either spouse is born outside Nigeria, the dates of entry and exit in and out of Nigeria;
4. Domicile – Place of residence of each of the parties;
5. Children – Number of children, age and sex;
6. Co – habitation – Places parties have lived and the duration;
7. Date and Signature

 

Documents Required

• Notice of Petition;
• Marriage Certificate;
• Acknowledgment of Service;
• Verifying Affidavit;
• Certificate relating to reconciliation signed by petitioner’s solicitor;
• Discretion statement if there is an allegation for adultery.

 

Procedure for Filing a Divorce

A petition for divorce is filed by a Petitioner and served on the Respondent. The Respondent files an answer to the petition where s/he intends to contest the dissolution of the marriage or where there are certain allegations or assertions s/he intends to dispute. Depending on the answer filed by the Respondent, there may be a need for the Petitioner to file a reply especially where the respondent brings up fresh issues and assertions not contemplated by the Petitioner. There are no obvious advantages of filing first in a petition for divorce. To commence the procedure to dissolve a marriage, we will need to:

• Prepare a Notice of Petition and all accompanying documents;
• Courier documents to be executed by the Petitioner;
• Serve the processes on the Respondent;
• Pay filing fees at the Court; and
• Pay fees for service of court processes on the Respondent.

 

The following information and documents are required:

• Copy of your marriage certificate;
• Photocopies of visas and international passport;
• Full names of the parties;
• Current addresses of the parties;
• Occupation of the parties;
• Full details of marriage – place, type (registry or customary or both), date and religious denomination, if the marriage is a customary marriage;
• Conjugal status (the last time of intimacy between the parties);
• Full details of birth – date and place;
• Full particulars of each entry into Nigeria – dates;
• Co-habitation – places parties have lived together;
• Duration of co –habitation – Periods of each place lived;
• Full particulars of children – number of children, sex, ages, dates of birth, full names and addresses;
• Reliefs sought (dissolution of marriage, custody of children, maintenance etc.);
• Reconciliation – if there is any room for reconciliation; and
• Grounds for dissolution of marriage – state specifically the ground(s) on which you would like us to proceed on.

 

• Custody / Guardianship of Children

Upon the granting of a judicial separation or dissolution of marriage, and given the reliefs sought by the Petitioner, the court will determine the party who takes custody of a child of the marriage. One party will be granted primary custody while the other will be allowed visitation rights (the right to visit the child or have the child visit the parent who gets a visitation rights). In making a decision as to who takes custody of the child, the court will consider the welfare and best interest of the child first, as the interest of the child is paramount in every petition for judicial separation or divorce and claim for custody.

In making a decision, the court will put the following into consideration:

• The age of the child – The fact that a child is of a tender age does not necessarily mean that his/her custody will always be granted to the mother but the court will readily do so if it is in the interest of the child. The law does not lay down any rule or principle which the court is bound to observe. However, children below the age of seven (7) are usually left with the mother, except where it is proved that the mother’s character is morally reprehensive;
• The sex of the child – While there is no rule of law which the courts are bound to observe, any order of court will depend on the circumstances of the case as often times, a girl child of tender age is usually left to her mother, for instance;
• Separation of siblings – similarly, the court will be unwilling to separate siblings as it will consider the welfare and best interest of the children as a whole;
• Mental capacity of the parents;
• Conduct of the parents – The conduct of the parties to the child is a matter to be taken into account in determining what the best interest of the child is. However, a parent may not be deprived of custody merely because of his or her conduct, which might have contributed to the breakdown of the marriage. The court’s discretion must not be exercised as a punishment for one party or a reward for the other party;
• Education and religion – The court usually gives consideration to the advantages and disadvantages of any arrangement for the education and religion of the child. Matters of religion may affect the welfare of the child and courts are anxious to ensure that whatever decision is reached in this respect reflects the child’s best interest;
• Ability of the party to support and care for the child (financial and moral) – Where a party seeks the custody of a child of the marriage, he/she is required to set out the proposed arrangement for accommodation, welfare, education, upbringing and other arrangements of the child. Unless the party sets out these facts, the court may be reluctant to consider the question of custody in favour of such party.

It should be emphasized that the mere fact that a spouse has material wealth cannot per se be regarded as being in the best interest of a child of the marriage. But the fact that one spouse is in a much better financial position to bring up the child and to provide him or her better accommodation may be decisive;

• Medical and psychological factors – If custody of a child has been with a parent for a considerable period of time, care must be exercised in the change of the custody. This may result in psychological harm to the child. In such a case, the court may order that the custody remains with the parent already taking care of the child;
• Nationality of parents – The courts would not discriminate between a Nigerian or Non-Nigerian parent in an award of child custody. The primary consideration is the welfare of the child;
• Wishes of the child – In some cases, the judge in a custody proceeding may interview the affected child privately particularly where the child has attained an age when he/she is capable of expressing his/her wishes.

However, the child’s view may emerge from welfare reports and will be taken into account. The court usually treats the wishes of the child with caution as his decision may be influenced either by his age or a parent’s influence; and

• Circumstances peculiar to the divorce.

It is important to note that infidelity does not automatically deprive either parent the custody of a child. Where the couple is married under a custom, such custom shall be put into consideration in determining the party entitled to the child.

From the provisions of the Matrimonial Causes Act, it will be appreciated that the Court has a wide discretion in custody matters. The Court has the discretion to make such orders in respect of custody, guardianship, welfare, maintenance, advancement or education of the child as it thinks fit.

 

Types of Custody Orders the Court May Make

There are various custody orders, which the court may make depending on the circumstances of the case. At all times, however, the court shall have regards to the interests of the child as the paramount consideration. The custody orders the court may make include:

1. Divided Custody

This is a situation where the child lives with each parent part of the year with reciprocal visitation privileges. At the time the child is in custody of one of the parents, he/she has complete control over the child.

 

1. Split Custody

In this case, the court grants custody to one parent and care and control to the other. The result is that the parent vested with custody has the power to control the major decisions of the child’s future while the other parent controls the day-to-day physical upbringing of the child.

The modern approach is to vest the custody in both parents (with powers to make major decisions) and grant care and control to one of them. The court may also grant care and control to one parent without making any order as to custody.

 

III. Joint Custody

Joint custody involves both parents sharing responsibility and authority with respect to the children. This may involve joint “legal” custody and joint “physical” custody. The effect of this is that both parents are involved in the physical sharing of the child as well as participating in decisions affecting the child’s life such as education, medical problems etc.

This is in contrast with split custody. It should be noted that “joint” custody does not necessarily mean equal or fifty-fifty sharing of time since each case depends on the child’s age, parent’s availability & desires among other factors. Before an order of joint custody is made, the court must ensure that the parents would co-operate with each other, otherwise, it will be an order in futility.

 

1. Temporary Custody

This is where custody of a child is awarded to a parent temporarily pending the outcome of a separation or divorce proceedings.

This power can be exercised where during a matrimonial proceeding, a dispute with respect to the custody, guardianship, welfare, maintenance, advancement or education of the children of the marriage arises after the proceedings for the principal relief has been instituted. The Petitioner or Respondent may make an application for an interim order of custody pending the final determination of the Petition.

The application may be made ex-parte in cases of extreme urgency or on notice to the other party. In cases of extreme urgency, an oral application may be made subject to the leave of court, before the ex-parte application or application on notice is made.

 

1. Third-Party Custody

Where the Court considers it desirable to do so, it may place the child under the custody of a third party – a person other than a party to the marriage, either permanently or as an interim measure, if it considers this to be in the child’s best interest.

The Court will make this order:

• Where it is obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the child;
• Where neither of the parties to the marriage has applied for the custody; or
• Where in the opinion of the court, neither of the parties to the marriage is a fit and proper person to have the custody of the child.

If custody is granted to a third party, the court may include an order as to proper access to the child by the parents.

We hope you find guidance from the foregoing.

 

Thank you.

ANDI DAZE LEGAL