If divorce has increased one thousand percent, don’t blame the woman’s movement, blame our obsolete sex roles on which our marriages were based. [1]
The increasing rate of divorce in Nigeria is a bit alarming, one would wonder if divorce is just as simple as signing papers to end the marriage. As much as we do not encourage this, it is our duty to enlighten you as ignorance of the law is no excuse. The English dictionary defines divorce as an official ending of a marriage; an ending of a marriage by an official decision in a court of law. The term divorce has been loosely used to define things such as separation, desertion, break ups etc but we should take note that the operative word in the definition of divorce is official and court.
Marriage contrary to what most people think is a union, not a contract that can be ended at will. In Nigeria, there is nothing such as divorce by consent, two people cant agree to be divorced and sign a paper to that effect. It is only the court that has such powers, even the marriage registry that conducts marriages does not have the power to grant divorce, a lawyer cannot grant divorce in his office, neither can a judge without following the due processes
Grounds for divorce
You can only get a divorce if you show the court that there has been an "irretrievable breakdown" of the marriage or that one of the spouses is mentally ill or continuously unconscious.
Irretrievable breakdown means that the couple can no longer live together and there is no reasonable chance of them resolving their differences. Proof of this can include evidence showing that:
- The couple have not lived together for a while.
- One partner cheated on the other.
- One partner left the other.
- One partner abused the other.
- The couple no longer love each other.
- You can get a divorce if your partner has been institutionalised for mental illness for at least two years and doctors don't think that they will ever recover.
- You can get divorced if your partner has been unconscious for at least six months and doctors don't believe that they will ever recover.
This Are Standard Grounds For Divorce as Practiced Globally, However The African Setting Being a Unique Exception Has its own Norm Practice.
DISSOLVING A MARRIAGE IN TERMS OF AFRICAN CUSTOMARY LAW
Customary marriages are similar to civil marriages in that the court must issue the divorce order and the divorce will only be granted if there are grounds for divorce (that is irretrievable breakdown, mental illness or continuous unconsciousness).
The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding custody and maintenance. If the court has to decide on these matters it will take into account any arrangements that may have been made in terms of customary law.
The wife's family may have to return all or part of the lobola to the husband's family, unless the husband publicly rejected his wife for no reason at all.
. For instance; as a general rule, parties to a marriage that is less than one year old cannot file a divorce petition. There are however exceptions to this rule which will be discussed in subsequent series. Also worthy to be mentioned is that the High court is the court that has jurisdiction to hear divorce cases[2].
Divorce can also be called dissolution of marriage, this is usually granted when the petitioner can prove to the court that the marriage has broken down irretrievably.[3] The court can also grant a decree of nullity of marriage where the reason is usually goes to the root of the existence of the marriage itself, that is when one can say the marriage is void, it doesn’t have much to do with the behaviour of the parties to the marriage like in divorce.
As to the question on who can file for a divorce, either party can file for a divorce, it must not be the man or the woman. Also, a divorce case can go on and succeed even when the respondent refuses to attend the proceedings, the court can grant divorce if the petitioner proves his case before the court.
Where there are children in a marriage, in granting custody, the court will look at the best interest of the child or children as the case may be. For purpose of custody, a child is a person less than twenty one years.[4]
To Be Continued...........
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