By Olumide Babalola

Divorce is an inherently painful and emotional process, often complicated by the disclosure of deeply personal and sometimes embarrassing private information. However, in Nigerian divorce cases, the disclosure of sensitive personal details often goes beyond what is necessary for the fair adjudication of the matter, damaging the dignity and privacy of the individuals involved, and by extension, their families. This practice, which is often done under the guise of pleadings, not only harms those directly involved in the case but also perpetuates social stigmas and exacerbates the already high rate of divorce-related trauma in Nigerian society.

As members of the legal profession, Nigerian lawyers have a profound ethical responsibility to balance the pursuit of justice with respect for privacy, decency, and human dignity. Unfortunately, in many cases, sensitive information that is irrelevant to the resolution of a divorce is unnecessarily disclosed, causing significant harm to the parties (and their dependants) involved. This article seeks to examine this growing concern and calls for a conscientious effort from Nigerian lawyers to prevent the socially destructive consequences of such practices.

Statutory marriages, like every other contractual relationship may/can end as amicably as reasonable without vendetta, mudslinging, intimidation or character-assassination. Happily, the Matrimonial Causes Act provides for instances where marriages can be dissolved by the courts without apportioning blames to either party. i.e where both parties have lived apart for a period of two or three years. Hence, parties to a divorce petition do not necessarily need to divulge gory details of their disagreement especially since court papers are public documents that can be accessed by innumerable number of persons.

The Legal and Ethical Obligations of Lawyers
Nigerian lawyers are bound by the ethical guidelines of their profession, which emphasize the duty to protect the confidentiality and dignity of their clients. The Rules of Professional Conduct for Legal Practitioners in Nigeria clearly outline that lawyers must avoid unnecessary disclosure of confidential information and must act in a manner that protects the integrity of the judicial process.
The challenge, however, arises when lawyers prioritize winning cases over protecting the well-being of their clients. Some practitioners may be inclined to use personal information strategically to gain an advantage in a case, without considering the long-term consequences for their clients. In such instances, the interests of the lawyer may conflict with the ethical duties to their clients and society. A lawyer ought to advise clients against the use of personal or embarrassing details about the client’s private and family life as ammunition for scoring a point in court. Such actions undermine the trust and confidentiality inherent in the lawyer-client relationship, erode public confidence in the legal system, and, most importantly, contribute to the broader social stigma surrounding divorce.

Privacy concerns
I recently read a divorce case where the petitioner was vindictive enough to disclose the HIV-status of his spouse even when that was not the fact relied on for the divorce. Admittedly, Nigeria’s privacy jurisprudence has not developed to the extent of reprimanding and redressing such unnecessary privacy invasion in court proceedings, there however exists foreign authorities for such claims. In L.L. v. France (Application no. 7508/02) a woman filed divorce petition and, in a bid, to win sole custody of the child of the marriage, she fraudulently obtained the husband’s medical record showing he was an alcoholic. When the husband challenged the tendering and use of his medical records as an unjustifiable invasion of his privacy, the European Court of Human Rights held that

“In reality, it was only on an alternative and secondary basis that the domestic courts used the disputed medical document in justifying their decisions, and it thus appears that they could have declared it inadmissible and still reached the same conclusion. In other words, the impugned interference with the applicant’s right to respect for his private life, in view of the fundamental importance of the protection of personal data, was not proportionate to the aim pursued and was therefore not “necessary in a democratic society for the protection of the rights and freedoms of others”

The court ultimately determined that while the disclosure of the applicant’s medical record during the proceedings was in accordance with established procedural law and aimed at protecting the wife’s rights and freedoms, it was ultimately unjustified. This was because the medical records were not essential to the case and did not play a decisive role in the proceedings. Where a party divulge private facts that are unnecessary to the issues in a case, a privacy suit can lie against such a party and section 45 of the Constitution may not offer any defence except such disclosure is required, necessary or backed by law.

Data protection dictates
Court proceedings are not immune or exempted from data protection obligations. Section 3(2)(e) of the Nigeria Data Protection Act 2023 (NDPA) only exempts processions that are necessary to establish legal claims. The test of necessity of a certain processing activity is found in proportionality and reasonableness. The Nigeria Data Protection Commission clarifies that, the necessity of processing of personal data must be determined from the risks and availability alternatives to such processing. (see page 27 of the General Application and Implementation Directive of the NDPA). For divorce cases, parties should ensure that the facts disclosed or evidence used do not portend unusual privacy risks to the other parties especially where there are alternatives to the disclosure of such private facts.

Conclusion
Divorce is a painful process that should not be compounded by unnecessary public humiliation. Nigerian lawyers are in a unique position to play a crucial role in reducing the harm caused by embarrassing disclosures in divorce cases. By adhering to ethical standards, advocating for privacy, and considering the long-term consequences of their actions, Nigerian lawyers can contribute to a legal system that is fair, compassionate, and just. This is a passionate appeal to all Nigerian lawyers to uphold the principles of privacy and dignity, both in the courtroom and in society, and to protect the individuals they represent from the socially destructive consequences of unnecessary disclosure of private facts. It is time for the legal profession to lead the way in creating a society where personal privacy is respected, and individuals are not further victimized by a legal process that is supposed to serve them.

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