28/09/2024
NOLLYWOOD LAW OF DIVORCE: CAN DISSOLUTION OF STATUTORY MARRIAGE BE GOTTEN THROUGH MUTUAL AGREEMENT/CONSENT OF PARTIES IN NIGERIA?
In 2019, I was referred to a socialite who was desirous of dissolving her marriage with her husband. After clerking the client and receiving advance payment to pursue a petition for the dissolution of her marriage, I filed the petition in court. As soon as her husband was served, she called me on phone and angrily blurted out her displeasure with my manner of pursuing her cause. She had expected that I should've written not more than one-page letter to her husband indicating that she's divorcing him and seeking his consent for the divorce by signing the document. Haa!!! Nollywood 1 - 0 Me.
This piece is provoked by what transpired yesterday in the High Court of the F.C.T. at Jabi which played out in sync with the Nollywood law of divorce. The case is a petition for dissolution of marriage otherwise known in common parlance as "divorce". The lawyers to the couple told the judge that their clients have settled and wished to adopt their Terms of Settlement so that the court can enter same as consent judgment. What??? In Nigeria? Nollywood 1 - 0 Nigerian Law.
It is usual to see in Nollywood movies, married partners dissolving their statutory marriages by "signing divorce papers". Rather than look inward and conduct simple research before churning out their movies on this subject, Nollywood producers just copy from their western counterpart: Hollywood, where same is replicated. But is this the case in Nigeria? Let us explore the laws governing matrimonial causes in Nigeria to find our answers.
Firstly, the state of the Nigerian laws on marriage, though borrowed from England, tacitly recognises our cultural apprehension of the sanctity of marriage by making its dissolution one that cannot be achievable by a no-fault divorce but through proof by oral or affidavit evidence of one ground that is pregnant with 8 facts to support it specified under the Matrimonial Causes Act. What this means is that, you cannot just wake up as a spouse to divorce your partner without cause or simply because you're tired of the marriage or as a result of "irreconcilable differences". The most common case of divorce we have in Nigeria is known as dissolution of marriage. There are others like nullity of marriage, judicial separation, restitution of conjugal rights, and jactitation of marriage. In a petition for dissolution of marriage, the husband and wife are validly married but don't want to do again. To dissolve a statutory marriage, the ground must be that the marriage has broken down irretrievably. But before the court can grant a decree for dissolution of marriage, the Petitioner (who is the spouse seeking the divorce) must satisfy the court that the marriage has broken irretrievably through evidence of any or more of the following 8 facts:
a. Refusal of the respondent (that is the spouse against whom the petitioner is seeking to be divorced from) to consummate the marriage.
b. That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
c. That 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 at least 1 year.
e. That the couple have lived apart for at least 2 years and the respondent does not object to the divorce.
f. That the couple have lived apart for at least 3 years.
g. That the other spouse has failed to comply with an order for restitution of conjugal rights for at least 1 year.
h. That the other spouse has been absent for at least 7 years to presume that he/she is dead. (See Section 15(1) and (2) of the Matrimonial Causes Act, Cap. M7, L.F.N. 2004).
Now, the existence of one or more the facts listed above is not what one can achieve by consent. They're facts that need to be proved to curry divorce. That is why, under Section 82 of the Matrimonial Causes Act, the standard required for proving such facts is by establishing same to the reasonable satisfaction of the court. The court cannot be satisfied of the existence of facts giving rise to the ground for dissolution of marriage through the mutual agreement of the parties to the marriage. It must be by oral or affidavit evidence of the petitioner, especially where it is a proceedings for dissolution of marriage (See Order XV Rules 1 and 5 of the Matrimonial Causes Rules, 1983). To further buttress the point that a court hearing a petition for dissolution of marriage cannot make a decree for dissolution of marriage by consent of parties, Order XXIII Rule 1 of the Matrimonial Causes Rules provides that the court is not prevented from making, with the consent of the parties, orders determining the proceedings or relating to the proceedings, but expressly forbids the court from making such consent orders when it applies to the determination of dissolution of marriage and the likes. What this means therefore, is that, parties can settle by agreement on other matrimonial issues like custody of children, settlement of marital properties, maintenance, etc, but cannot mutually settle or consent to the dissolution of their marriage. The only permissible settlement in such proceedings is going back to each other to live in peace and harmony. But once the destiny of such settlement is the dissolution of marriage, it must fail for proof by oral or affidavit evidence to succeed.
C.E.C. Njoku, Esq.
©️ 28/09/2024.
