The current law on matrimonial causes in Nigeria is the Matrimonial Causes Act of 1970. It principally regulates marriages celebrated under or in accordance with the Marriage Act in Nigeria. It provides for the ground of divorce under sections 15 (1) & 15 (2) and section 16 of the Act. It has been argued that the Act specified grounds for divorce as seen in the marginal note to section 15 (1).
However, as argued by Nwogugu, the above argument fails to stand the test of reason in view of the clear words of section 15(1) which used the word, ground. Moreover, it was held in A.G v Prince Ernest that the clear words of a statute prevails over its marginal note.
Finally, the marginal note has been removed in the 2004 edition of the Laws of the Federation of Nigeria. Therefore, Nigerian courts have interpreted section 15 as establishing irretrievable breakdown as the sole ground of divorce.
This was also held per Omo JCA in Harriman v Harriman. The Act equally provides for reliefs incidental to or coterminous with divorce. Under sections 30 and 58, the rules, condition precedents and procedure for divorce are elaborately contained therein.
Simply put, divorce is the legal ending of a marriage. It is also, the legal action that ends the marriage relationship of spouses before the death of either of them. The incidence of divorce has in fact, been on the increase on a daily basis.
This can be due to the liberation of women, lack of maturity and love in marriage, lack of understanding, financial anxiety, the provisions of the civil law for easier divorce, employments and business of spouses which make them have less time for each other, when either spouse view love and marriage from the way displayed in movies and lack of proper courtship before marriage.
As posited by Rev Fr. Dr. Maurice Izunwa, undoubtedly, ‘the greatest single reason is the decline of Christian faith in the west (Nigeria as a whole), together with the loss of commitment to a Christian understanding of the sanctity and permanence of marriage’.
According to the English Law Commission, a good divorce law should seek to achieve the following objectives: To buttress, rather than undermine, the stability of marriage.
When regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with maximum fairness, and the minimum bitterness, distress and humiliation. In analysing the second objective, it has been stated that, first, the law should make it possible to dissolve the legal tie once that has become irretrievably broken in fact. If the marriage is dead, the object of the law should be to afford it a decent burial.
Secondly, this should be achieved in a way that is just to all concerned, including the children as well as the spouses and which causes them the minimum embarrassment and humiliation. It should seek not to further embitter the relationships between the spouses or between them and their children but will encourage harmonious relationship between the parties and their children in future.
In deciding whether or not the MCA is a good divorce law, we shall analyse the divorce provisions therein and the theories of divorce.
History, From Fault Theory to No Fault Theory
Prior to 1970, the Nigerian law on divorce was based on the matrimonial offence theory which was adopted from England. This was as a result of the legal relationship or nexus between Nigeria and England.
By this theory, marriage may only be dissolved when a spouse has committed a matrimonial offence like adultery, cruelty or desertion. So, only an innocent party can seek the remedy of divorce as, if both parties are at fault, no remedy will be available. Such offence must be proved beyond reasonable doubt as other offences.
A shift from the fault theory which was developed by the old ecclesiastical courts, emanated in New Zealand, Australia and then, England. In 1966, England began with the 1966 report of the group set up by the Archbishop of Canterbury, on a new divorce law which was considered by the English law commission. It was then titled, Reform of the grounds of divorce: a field of choice. They made a montage of the breakdown theory and the matrimonial offence principle. The breakdown principle posits that once a marriage has irretrievably broken in fact, the legal tie be dissolved and the object of the law is to give it a decent burial. The report influenced the English divorce reform act of 1969. In 1970, the MCA was promulgated to take the place of the English act. It introduced the breakdown principle into the Nigerian law on divorce.
An Outline of the Grounds for Divorce under the MCA
Section 15(1) MCA provides that either party to a marriage may petition for divorce, upon the ground that the marriage has broken down irretrievably. Hence, a single ground of divorce was established.
To determine when a marriage has broken down irretrievably, section 15(2) (a) – (h); provides eight instances of such. So, the court may hold that a marriage has broken down irretrievably, if only the petitioner satisfies the court of the existence of one or more of the enumerated facts in section 15(2). For the purpose of this work, they will be outlined briefly.
Thus: That the respondent has wilfully and persistently refused to consummate the marriage. As such, the refusal must be the conscious and free act of the spouse as held in hardy v hardy. There must also, be a number of requests, direct or implied and an opportunity to comply with such request must exist. This was held in Horton v Horton.
That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. Unlike the matrimonial offence theory, the breakdown theory, grants divorce not only if adultery has been committed but that the other spouse finds it intolerable to live with the respondent. This must be proved to have been committed after the celebration of marriage and it must have been committed for various times.
That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. Behaviours that can ground a divorce under section (15) (2)(c), have been enumerated under section 16, MCA.
Though other behaviours may form a ground, the under listed ones include: rape, sodomy or bestiality, habitual drunkenness or intoxication, frequent convictions and habitually leaving the spouse without support, imprisonment, attempt to murder and assaults, habitual and wilful failure to support, insanity.
That the respondent has deserted the petitioner for continuous period of at least one year immediately preceding the presentation of the petition.
To constitute desertion, there must be, de facto separation of the parties, animus deserendi (intention to permanently desert), lack of just cause for withdrawal from cohabitation and the absence of the consent of the deserted spouse. This was stated in Ikwenobe v Ikwenobe.
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 did not object to a decree being granted.
That the parties have lived apart for continuous period of at least three years, immediately preceding the presentation of the petition.
That the other party to the marriage has, for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made
under the Act.
That the other party has been absent from the petitioner for such time and in such circumstance as to provide reasonable grounds for presuming that he or she is dead.
It is to be noted that the aforementioned facts are all exclusive, as a court cannot grant a decree of divorce unless one or more of those facts have been established. Also, there are other things that a petitioner must prove under each fact to sustain its existence. The standard of proof is to the reasonable satisfaction of the court as laid in section 82. An application for divorce can only be made in any high court of a state, if a person is domiciled in any state in Nigeria, as held in Adegoroye v Adegoroye. A party entitled to seek such remedy is one married under the Act.
Section 30 (1) provides, that the proceedings for a decree of dissolution of marriage shall not be initiated within two years since it was celebrated, except by leave of court. Unless, such spouse wilfully and persistently refused to consummate the marriage; committed adultery and the petitioner finds it intolerable to live with the respondent; committed rape, sodomy or bestiality or instituted the proceedings by way of cross proceedings.
Furthermore, The leave of court can only be granted when the petitioner discloses exceptional hardship which he or she will suffer if the petition is disallowed or an exceptional depravity manifested by the respondent which puts the petitioner to a great disadvantage by section 30 (3).
These must be proven to the satisfaction of the court and it is for the court to decide on what would constitute such exceptional hardship or depravity. For the court to grant such, the court would consider, interalia, the following issues:
Whether an attempt to effect reconciliation between the spouses has been made. If such attempt has been made, the particulars of the attempt and other circumstances that may assist the court in determining whether there is a reasonable probability of reconciliation between the parties before the expiration of the period of two years after the date of the marriage – order IV, rule 2.
Whether or not a child of the marriage is living and if so, to state the name the name of the child, the date of birth of the child, the place at which and persons with whom the child is residing.
The court is required to have regard to the interest of any child of the marriage. If the petition is found competent, it shall be heard in an open court and a judgement there from, comes in form of a decree. If the marriage is dissolved, a decree nisi is ordered which lapses after three months to become absolute and until then, the marriage continues to subsist – section 67 MCA.
A decree absolute shall not crystallize unless the court has been satisfied that proper arrangements have been made for the welfare, advancement and education of the children – section 57.
Where it crystallizes, the spouses are free to remarry and where a party dies before it crystallizes, the decree nisi would not be absolute – section 58, MCA.
Good enough, under section 60, where parties utilize the period of the decree nisi for reconciliation, they can apply to the court to rescind such decree and the court will waste no time to rescind it accordingly.
In granting such divorce, the MCA, also provides for reliefs that may be granted. Under section 70, the relief of maintenance as regards a party to the marriage or of the children of such union is provided. In the proceedings; the means, earning capacity and conduct of the parties to a marriage is determined to know who provides for whom, when and how.
Section 71 provides for the custody of children to the marriage. In such circumstance, the welfare of the child is the paramount issue as laid in section 57. Karibi-whyte in Williams v Williams, held that, in determining the welfare of a child; the emotional attachment to a particular parent, the inadequacy of facilities such as educational, religious or opportunities for proper upbringing amongst others, are considered.
Also, Principles which guide the award the custody under section 71, include: the age of the child, the sex of the child, familiarity of the environment, evidential resources and conduct of parents as seen in odogwu v odogwu; financial resources and these boils down to the best interest of the child.
Another relief granted is settlement of property owned in possession of reversion as the court considers just and equitable in the circumstances, for the benefit of both parties to the marriage or one of them and the children of the marriage. It has been pointed in paragraphs (2) and (3) of the Act that the properties affected relates to both the whole and part of the ante-nuptial or post- nuptial settlements.
Under the customary law, there is no ground for divorce as a number of reasons which include loose character, impotence of the husband or sterility of the wife, ill treatment and cruelty, witchcraft, adultery(particularly of the wife), and other reasons provides sufficient moral cause for dissolving marriages. Such marriage may be dissolved non-judicially by unilateral or mutual consent of the spouses.
Marriage is dissolved, only when the bride-price is refunded to the husband as held in Registrar of marriages v Igbinomwanhia.
However, in some parts of Nigeria, the grounds for customary law divorce are statutory. Under section 7 of the marriage, divorce and custody of children adoptive by-laws order, 1958, which applies to Ogun and Oyo states; Such grounds include, refusal to consummate; harmful diseases which may impair the fertility of a woman or virility of a man amongst others, can lead to judicial divorce by a court decree.
Under the Islamic law marriages, divorce may be by Talaq or repudiation; which is the husband unilaterally bringing the marriage to an end; divorce by mutual consent, where there is a mutual release of any outstanding commitment from the marriage relations or offer of return of bride price to the husband and acceptance of such by him; by judicial decree, where the court comes up with a resolution based on a petition by either of the parties. There are no grounds for divorce under the Islamic law but for judicial dissolution to be granted, there are grounds which include, husband’s failure to maintain his wife, desertion, impotence, incurable disease and cruelty.
An Appraisal of the Theories and Laws on Divorce
Though it can be argued that the matrimonial offence theory maintains the stability, holiness, sanctity and ideal of marriage due to its strict nature of proving any of the matrimonial offence; thereby, it makes walking out of marriage almost impossible. Marriage ought to be enjoyed and a spouse, who fails to prove such offence, will be forced to live with the other spouse, making such marriage unbearable for the spouses.
Also, the commission of a matrimonial offence normally follows the breakdown of marriage and is not the cause of it. All these, may lead to hostile litigation, emotional distress and humiliation to the spouses and children. As the theory, does not provide for the interest of the children or spouses after such dissolution, it does not afford such broken legal tie, a decent burial. So, the matrimonial offence theory falls short of the second arm of a good divorce law.
On the other hand, the Islamic and customary law marriages, lack any proper argument for a good divorce law as marriage can be ended unilaterally or by mutual consent of the spouses without any reasonable and just cause. It thus, renders the sanctity of marriage to ridicule, brings an unfavourable effect to the spouses and their children after the dissolution, even when made by a judicial decree.
The irretrievable breakdown theory, on the first arm, tries to maintain the stability of marriage as seen under section 30. This is so, because of the two years rule and the issue as to determining reconciliation between the spouses before the leave of court is granted. Thus, as stated by Bucknill in Fisher v Fisher, it helps not only to deter people from rushing into ill-advised marriages, but also to prevent them from rushing out of marriage as soon as they discovered that their marriage was not what they expected. Also, the provision of section 57 and 67, where a decree nisi would not become absolute until 3 months, affords a good opportunity for
reconciliation. However, the duration seems too small considering a situation where the problems that led to the petition for divorce is too grave and as such, to effect proper reconciliation may take a longer time.
On the other hand, the MCA tries to afford a decent burial to an empty legal shell by the provisions of the ground for marriage under section 15 & 16. Also, it tries to grant the maximum fairness and minimum bitterness to the spouses and their children. This is due to the reliefs granted under sections 70 – 72.
However, some grounds for the dissolution of marriage such as behaviour under section 15 (2) (c), does not agree well with the sanctity of marriage. Facts like insanity and other behaviour which may have not emanated from the other spouse’s Will, may provide a ground for divorce. This then, makes nonsense of the vows taken during the celebration of marriage, ‘for better, for worse, in sickness and in health’. Also, the period stipulated under sections 15 (2) (d) – (g) are rather too small as it does not create room for patience, endurance and stability in marriage.
Also, the ground of adultery and intolerability is rather too rigid and not straightforward as a spouse will not only prove both, but must prove that it has been committed for quite a number of times.
Conclusion and Recommendations
It is crystal clear that the term, divorce is inimical to the sanctity of marriage. This is why more preference is given to the Canon Law, which recognizes only the nullity of marriage and abhors the term, divorce. This helps to indeed, give an arm to the definition of marriage ‘for life’ and the vows taken in church, ‘till death do us part’; a reasonable meaning and interpretation. Regrettably, however, due to some factors earlier mentioned, spouses find it difficult to stay true to their own vows.
Among the two theories and laws of divorce, aforementioned, the writer agrees that the irretrievable breakdown theory under the MCA affords a better option for a good divorce law. Though, the MCA is not in totalita alita, a good divorce law, it has to a reasonable extent passed the two objectives of a good divorce law. Therefore, the following are recommended:
That the periods stipulated under sections 15 (2) (d) – (h) and the reconciliation provisions be expanded.
That the provision of section 15 (2) (c) & 16 be amended or better still, be completely scrapped out from the Act.
That family law experts, be given room to look into broken marriages properly and make better findings before a decree for dissolution is granted.
That couples be guided properly as to the needs and requirements of marriage before entering into it.
That seminars and enlightenment programs be organized for married and unmarried persons to enable them expunge from their minds, marriages as seen in the movies; so that they can view marriage as from the actual needs and realities of life.
That though, the Canon Law is persuasive as to our Nigerian legal system; an adoption of some of its provisions and other anti – divorce legislations into our Laws, will go a long way to achieve totally a better objectives of a good divorce law.
Mercy, a graduate Nnamdi Azikiwe University is an ardent legal researcher and an aspirant to the Bar. She can be reached at 08137382200 and