STILL ON THE MATTER.....

Divorce continued

The Matrimonial Causes Act provides the main ground for divorce which is like we said in the previous edition, that the marriage has broken down irretrievably. It further goes down in subsection 2 of that section to state or define irretrievable break down. Thus, for a party to seek the dissolution of marriage, he must prove to the satisfaction of the court the existence of one or more of the following:

* that the respondent has wilfully and persistently refused to consumate the marriage;
* that since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
* that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
*that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
* that the parties to the petition 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;
* that the parties have lived apart for a continuous period of three years immediately preceding the presentation of the petition;
* that the other party to the marriage has, for a period not less than one year failed to comply with a decree of restitution of conjugal rights made under this Act;
* that the other party to the marriage has been absent for such time and in such circumstances as to provide reasonable suspicion that he or she is dead.

However, for these grounds to avail a petitioner, there has to be a valid marriage, in other words, if the marriage was void ab initio, there would be no need for dissolution rather the petitioner will apply for a decree of nullity.
Section 3 Matrimonial Causes Act states the grounds on which a marriage might be void as follows:

 * if at the time of the marriage, one of the parties was lawfully married to some other person;
* if the parties are within the prohibited degree of consanguinity or affinity;
* the marriage is not a valid marriage under the law of the place where the marriage takes place by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;
* lack of consent of one of the parties for instance where consent was obtained by fraud, duress, mistake or at the time of the marriage, the party was mentally incapable to understand the nature of the marriage contract, where either of the parties is not of a marriageable age.

Furthermore, the Matrimonial Causes Act also provides for voidable marriages, which means that the marriage is valid until set aside, that is, the marriage is only voidable at the instance of the aggrieved party. Such instances are as follows:
* where at the time of the marriage, either party is incapable of consummating the marriage;
*where either party to the marriage is of unsound mind,a mental defective or subject to recurrent attacks of insanity or epilepsy;
* where either party is suffering from a venereal disease in a communicable form;
* where the wife is pregnant by a person other than the husband(a wife cannot bring petition on this ground under the Act).
  From the foregoing therefore one can opine that divorce is possible in Nigeria if one can prove any of the above facts before the court but it is advised that parties should be cautious and be certain they want a divorce before coming to the court because the court views marriage as sacred thing and is not usually in a hurry to dissolve same except there was no marriage in the first place or the marriage has broken down irretrievably.