Can Court Dismiss Divorce Case Because Husband Impregnated Wife?

Daily Law Tips (Tip 755) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:
Recently, my attention was drawn to a publication on social media, where it was claimed that a judge dismissed a divorce case brought by a couple, because the wife of the marriage was pregnant for the husband. There were mixed reactions on social media, with many questioning the legality of the conclusion of the judge. This work seeks to settle the risen dust over the legality of dismissing a divorce case because the wife of the marriage sought to be terminated got pregnant during the pendency of the case.

Divorce and Pregnancy:
There are clear grounds for divorce of English marriages in Nigeria. English marriage is a marriage according to written law on marriage and should not be confused with customary/native marriage. The grounds for dissolution of English marriage are contained in the federal law for resolution of marriage disputes (the Matrimonial Causes Act). The summary of the grounds for divorce of English marriage in Nigeria is that “the marriage has broken down irretrievably”. It means that not only that the marriage has broken down, but that it has so broken down to the extent that it cannot be repaired or remedied. In the pidigin English language of the popular veteran actor; Zebudaya (Chief Chika Okpala), the marriage has broken down and has no “mekwantalism” (remedy).

Under the summary ground that “ the marriage has broken down irretrievably”, there are several factors that can make a marriage to be said to have broken down irretrievably. One of the factors is where a party to the marriage (husband or wife) has willfully and persistently refused to consummate the marriage (continued intentional refusal to have a single act of sexual intercourse since the day of wedding). Yes, this is a good ground for an English marriage to be terminated by a court in Nigeria.

Pregnancy and Dismissal of Case for Divorce:
The only courts in Nigeria that can terminate English marriages are the various States High Courts. So, where there is a case for the termination of marriage, parties are to take their case to the State High Court. A State High Court will after listening to parties and evaluating evidence before it, convince itself that there is an English Marriage and that the English marriage has broken down irretrievably.

Part of the grounds for divorce could be that the husband or wife of the marriage has willfully and persistently refused to have sex since the first day of their marriage. In such situation, anything to prove that there has been a sexual intercourse since the marriage will challenge and invalidate that ground. So, where that ground is the sole ground, the court cannot divorce the marriage, since there is proof that there has been sexual intercourse since the marriage.

Conclusion:
The gist in social media that a court threw away (dismissed) a case for divorce because the judge learnt that the wife of the marriage was pregnant for the husband of the marriage, during COVID-19 lockdown is possible. YES, this is legally correct and possible. This is possible where the only ground for divorce is the refusal to consummate marriage (ie., failure of a couple to make love at least once in their marriage). It is allowable since the court will have no powers to proceed with the divorce case, since the pregnancy is truly that of the husband and a clear proof of sexual intercourse of the parties. It shows there is no more willful refusal to consummate marriage.

However, a court should be careful, since there could be pregnancy via artificial insemination (like “In Vitro Fertilization” [IVF]) without any sexual intercourse. The agreement of parties that there was sexual intercourse between them and the existence of pregnancy is a clear proof of sexual intercourse between parties and a good ground for a court to dismiss a case for divorce brought under a sole ground (refusal to consummate marriage). Like the social media gist puts it, the pregnancy is a certified true copy of proof of reconciliation between the couple and there is no need for the divorce case to be continued by the court.

My authorities, are:
1. Sections 1,2, 15 and 16 of the Matrimonial Causes Act, 1970.
2. Section 1, 2, 32, 32 of the Marriage Act, 1914.
3. Onyekachi Umah, “Custody of Children of Traditional Marriages and the “Chichidodo” (LearnNigerianLaws.com, 18 February 2021) <https://learnnigerianlaws.com/custody-of-children-of-traditional-marriages-and-the-chichidodo/> accessed 11 March 2021.
4. Onyekachi Umah, “How To Be Legally Married” (LearnNigerianLaws.com, 6 March 2016) <https://learnnigerianlaws.com/how-to-be-legally-married/> accessed 11 March 2021
5. Onyekachi Umah, “Forget Hollywood & Nollywood: In Nigeria, Marriages Cannot End By Signing Of Divorce Papers.” (LearnNigerianLaws.com, 23 July 2020) <https://learnnigerianlaws.com/forget-hollywood-nollywood-in-nigeria-marriages-cannot-end-by-signing-of-divorce-papers-daily-law-tips-tip-616-by-onyekachi-umah-esq-ll-m-aciarbuk/> accessed 17 February 2021.
6. Onyekachi Umah, “How To Prove Traditional Marriage In Nigeria” (LearnNigerianLaws.com, 20 May 2020) <https://learnnigerianlaws.com/how-to-prove-traditional-marriage-in-nigeria-daily-law-tips-tip-573-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 17 February 2021
7. Onyekachi Umah, “Customary Marriages In Nigeria Are To Be Registered In Court.” (LearnNigerianLaws.com, 13 September 2018)  <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-183-customary-marriages-in-nigeria-are-to-be-registered-in-court/> accessed 17 February 2021.
8. Onyekachi Umah, “Custody of a Child In Customary Marriage: How and To Whom?” (LearnNigerianLaws.com, 29 September 2021) <https://learnnigerianlaws.com/custody-of-a-child-in-customary-marriage-how-and-to-whom/> accessed 17 February 2021
9. Onyekachi Umah, “Factors That Court Consider Before Granting Custody Of Child To Any Person.” (LearnNigerianLaws.com, 3 March 2020) <https://learnnigerianlaws.com/factors-that-court-consider-before-granting-custody-of-child-to-any-person-daily-law-tips-tip-517-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 17 February 2021
10. Onyekachi Umah, “Forced Marriage Is An Offence In Nigeria” (LearnNigerianLaws.com, 21 October 2020) <https://learnnigerianlaws.com/forced-marriage-is-an-offence-in-nigeria/> accessed 11 March 2021
11. Onyekachi Umah, “Female Genital Mutilation/Cutting/Elongation, Breasts Ironing And Forced Marriage Are Now Criminal Offences In Nigeria” (Daily Law Tips [443]) <https://learnnigerianlaws.com/female-genital-mutilation-cutting-elongation-breasts-ironing-and-forced-marriage-are-now-criminal-offences-in-nigeria-daily-law-tips-tip-443-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 12 October 2020.
12. Onyekachi Umah, “Forceful Isolation/Separation Of Family Members/Friends Is Now An Offence In Nigeria” (Daily Law Tips [356]) <https://learnnigerianlaws.com/forceful-isolation-separation-of-family-members-friends-is-now-an-offence-in-nigeria-daily-law-tips-tip-356-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 12 October 2020.
13. Onyekachi Umah, “Approval For Marriage Of Female Officers/Staff Is Unconstitutional and Discriminatory”, (LearnNigerianLaws.com, 23 September 2020) <https://learnnigerianlaws.com/approval-for-marriage-of-female-officers-staff-is-unconstitutional-and-discriminatory/ > accessed 2 October 2020.
14. Onyekachi Umah, “Citizen By Marriage Is Discriminatory and Against Nigerian Women”, (LearnNigerianLaws.com, 14 September 2020) <https://learnnigerianlaws.com/citizen-by-marriage-is-discriminatory-and-against-nigerian-women/ > accessed 2 October 2020.
15. Onyekachi Umah, “Can a Married Woman Inherit Her Parents Property?” (LearnNigerianLaws.com, 27 March 2020) <https://learnnigerianlaws.com/can-a-married-woman-inherit-her-parents-property-daily-law-tips-tip-535-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 2 October 2020.
16. Onyekachi Umah, “English Marriages Outside Marriage Registries and Churches Are Valid” (LearnNigerianLaws.com, 28 September 2020) <https://learnnigerianlaws.com/english-marriages-outside-marriage-registries-and-churches-are-valid/> accessed 11 March 2021.
17. Onyekachi Umah, “When Can Churches Dissolve Marriages?” (LearnNigerianLaws.com, 25 August 2020) <https://learnnigerianlaws.com/when-can-churches-dissolve-marriages/> accessed 11 March 2021
18. Onyekachi Umah, “3 Steps to a Valid English/Court Marriage” (LearnNigerianLaws.com, 21 August 2020) <https://learnnigerianlaws.com/3-steps-to-a-valid-english-court-marriage/> accessed 11 March 2021
19. Onyekachi Umah, “Minimum Number of Guests for Marriages in Nigeria” (LearnNigerianLaws.com, 14 August 2020) <https://learnnigerianlaws.com/minimum-number-of-guests-for-marriages/> accessed 11 March 2021
20. Onyekachi Umah, “Child Marriage/Abuse Is A Crime (Rape): An Exposé On Laws Prohibiting Child Marriage” (LearnNigerianLaws.com, 22 June 2020) <https://learnnigerianlaws.com/child-marriage-abuse-is-a-crime-rape-an-expose-on-laws-prohibiting-child-marriage-daily-law-tips-tip-593-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 11 March 2021
21. Onyekachi Umah, “Customs That Allow Marriages Between Women Or With Dead Persons; The Position Of The Law” (LearnNigerianLaws.com, 13 March 2020) <https://learnnigerianlaws.com/position-of-law-on-the-customs-that-allow-marriage-between-women-or-with-dead-persons-daily-law-tips-tip-525-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 11 March 2021
22. Onyekachi Umah, “Approved Time For Valid Weddings (Marriages) In Nigeria” (LearnNigerianLaws.com, 26 June 2019) <https://learnnigerianlaws.com/approved-time-for-valid-weddings-marriages-in-nigeria-daily-law-tips-tip-359-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 11 March 2021
23. Onyekachi Umah, “Valid English Marriage Cannot Start From Church/Mosque” (LearnNigerianLaws.com, 9 May 2019) <https://learnnigerianlaws.com/valid-english-marriage-cannot-start-from-church-mosque-daily-law-tips-tip-327-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 11 March 2021
24. Onyekachi Umah, “Start Point Of Valid English Marriage In Nigeria” (LearnNigerianLaws.com, 6 July 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-136-start-point-of-valid-english-marriage-in-nigeria/> accessed 11 March 20201
25. Onyekachi Umah, “Legality of Varying Cost of English Marriages Across Nigeria” (LearnNigerianLaws.com, 4 July 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-134-legality-of-varying-cost-of-english-marriages-across-nigeria/> accessed 11 March 2021
26. Onyekachi Umah, “Use of Fake Name by a Spouse Invalidates Marriage in Nigeria” (LearnNigerianLaws.com, 29 June 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-131-use-of-fake-name-by-a-spouse-invalidates-marriage-in-nigeria/> accessed 11 March 2021
27. Onyekachi Umah, “Validity of Marriages Conducted in Ikeja, Abuja and other Federal Marriage Registries in Nigeria” (LearnNigerianLaws.com, 21 May 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-105-validity-of-marriages-conducted-in-ikeja-abuja-and-other-federal-marriage-registries-in-nigeria/> accessed 11 March 2021
28. Onyekachi Umah, “Can A Wife Without A Male Child Inherit Her Husband’s Property?” (LearnNigerianLaws.com, 28 October 2020) <https://learnnigerianlaws.com/can-a-wife-without-a-male-child-inherit-her-husbands-property/> accessed 11 March 2021
29. Onyekachi Umah, “Punishment For Clergies That Wed People Without License” (LearnNigerianLaws.com, 11 September 2020) <https://learnnigerianlaws.com/punishment-for-clergies-that-wed-people-couples-without-license/> accessed 11 March 2021
30. Onyekachi Umah, “Drug Test of Ladies before Wedding is Unlawful” (LearnNigerianLaws.com, 28 August 2020) <https://learnnigerianlaws.com/drug-test-of-ladies-before-wedding-is-unlawful/> accessed 11 March 2021
31. Onyekachi Umah, “A Clergy Cannot Wed People In A Different Church From His” (LearnNigerianLaws.com, July 27 2020) <https://learnnigerianlaws.com/a-clergy-cannot-wed-people-in-a-different-church-from-his-daily-law-tips-tip-618-by-onyekachi-umah-esq-ll-m-aciarbuk/> accessed 11 March 2021.
32. Onyekachi Umah, “Married Women And The Need For Husband’s Consent For International Passport” (LearnNigerianLaws.com, 16 April 2020) <https://learnnigerianlaws.com/married-women-and-the-need-for-husbands-consent-for-international-passport-daily-law-tips-tip-549-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 11 March 2021
33. Onyekachi Umah, “Factors that Court Consider Before Granting Custody of Child to Any Person” (LearnNigerianLaws.com, 3 March 2020) <https://learnnigerianlaws.com/factors-that-court-consider-before-granting-custody-of-child-to-any-person-daily-law-tips-tip-517-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 11 March 2021
34. Onyekachi Umah, “The Right Court For Divorce In Nigeria” (LearnNigerianLaws.com, 24 April 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-87-the-right-court-for-divorce-in-nigeria/> accessed 11 March 2021
35. Onyekachi Umah, “Refusal to Make Love Is a Ground for Divorce” (LearnNigerianLaws.com, 16 April 2018) <https://learnnigerianlaws.com/refusal-to-make-love-is-a-ground-for-divorce/> accessed 11 March 2021
36. Onyekachi Umah, “Abolished Anti-Women Custom of Onitsha People of Anambra State, Nigeria” (LearnNigerianLaws, 10 March 2020) <https://learnnigerianlaws.com/abolished-anti-women-custom-of-onitsha-people-of-anambra-state-nigeria-daily-law-tips-tip-522-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 2 October 2020
37. Onyekachi Umah, “Abolished Anti-Women Custom of Yoruba People of Nigeria”, (LearnNigerianLaws.com, 11 March 2020) <https://learnnigerianlaws.com/abolished-anti-women-custom-of-yoruba-people-of-nigeria-daily-law-tips-tip-523-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 2 October 2020.
38. Onyekachi Umah, “How To Stop Your Husband/Wife From Marrying Another Person” (LearnNigerianLaws.com, 18 July 2019) <https://learnnigerianlaws.com/how-to-stop-your-husband-wife-from-marrying-another-person-daily-law-tips-tip-375-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 11 March 2021
39. Onyekachi Umah, “Leaving Your Spouse To Marry Another Person is a Criminal Offence” (LearnNigerianLaws.com, 3 May 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-93-leaving-your-spouse-to-marry-another-person-is-a-criminal-offence/> accessed 11 March 2021.

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