Knowing how to file for divorce in Nigeria is handy whether you want to file for a divorce or not in Nigeria. The sole ground for filing a divorce in Nigeria is that the marriage has broken down irretrievably (see S.15(1) of the Matrimonial Causes Act).
There are so many things one have to consider before filing for divorce in Nigeria. I advise you only file for divorce after visiting a marriage counsellor.
The step towards how to file for divorce in Nigeria
The mode the divorce will take will depend on the way the marriage was contracted. We shall be discussing divorce as it relates to Statutory Marriage (marriage under the Act or marriage at the registry).
To commence an action for divorce, you will need a lawyer to file a petition (with all accompanying processes). The High Court of any State in Nigeria has the jurisdiction to hear divorce matters.
how to file for divorce in Nigeria within two years of the marriage
So, let’s talk about the Two (2) year rule. The two-year rule protects marriage as an institution. The Nigerian matrimonial laws are against parties getting a divorce in less than two years of their marriage. These laws try to protect the family. The Court assumes parties are still in their honeymoon period and will therefore not hear a matter on divorce (there are exceptions).
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However, one might be in a situation where they have to file for divorce within two years of their marriage. In such a situation you will need your lawyer to file all processes for divorce with the Leave of Court. The Leave of Court will show the court the exceptional reason(s) why the court should decide on the matter. You can see S. 30 of the Matrimonial Causes Act.
Factors the Court will consider to enable it to determine a marriage has broken down irretrievably
We shall discuss the eight conditions that can convince the court that a marriage has broken down irretrievably. A petitioner should be able to prove one or more of these eight conditions. see S.15(2) of the Matrimonial Causes Act. Theses eight conditions are:
1. That the Respondent has willfully and persistently refused to consummate the marriage
Here, the Respondent has willfully and persistently refused to consummate the marriage. However, the petitioner must show that he/she has requested that the marriage be consummated but deprived continuously.
2. That since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the Respondent.
Adultery is a ground for filing a divorce.
However, the petitioner must show that they find the adultery intolerable. For instance, if you caught your wife/husband cheating on you and you decide to forgive him by living together peacefully; then later decides to file for divorce because of adultery, this might not succeed.
3. That since the marriage, the Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent.
Under this condition, the petitioner will have to convince the court that the Respondent has exhibited some behaviours. These behaviours/patterns are behaviours that the petitioner will not be able to reasonably stay with. S.16 of the Matrimonial Causes Act gives us some examples of such situations.
Such behaviours include rape, bestiality, sodomy, drunkenness, going in and out of jail, etc. You will have to convince the court that these behaviours are things you cannot reasonably be expected to stay with.
4. The Respondent has deserted the petitioner for a continuous period of at least one year, immediately proceeding the presentation of the petition
The petitioner will have to show to the court that the respondent has deserted (abandoned) him/her for a continuous period of at least one year. If you are bringing a divorce under this ground, you must note that a mere staying apart doesn’t amount to desertion.
Parties will have to show that there is no consent to stay apart. However, if there was consent at a point, the time will begin to count from where there was no consent to stay apart.
5. That the parties to the marriage have lived apart for a continuous period of at least two years immediately proceeding the presentation of the petition and the Respondent doesn’t object to a decree being granted.
Under this condition, parties must have lived apart for two years and the respondent is not objecting to such a divorce.
6. That the parties to the marriage have lived apart for a continuous period of at least three years immediately proceeding the presentation of the petition.
Parties must have stayed apart for at least three years under this ground of divorce. Staying apart here does not mean parties are staying physically apart. Parties can still be under the same roof but are no longer doing things in common as a couple. for instance, parties are no longer cohabiting, cooking or eating together.
7. That the other party to the marriage has for a period of one year, failed to comply with a decree of restitution of conjugal rights made under the decree.
The Respondent under this ground for divorce has refused to cohabit after a decree of restitution of conjugal rights has been granted by the court for more than a year.
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable ground for presuming that he or she is dead.
The law presumes that anybody that is absent for seven (7) years or more is presumed dead until the contrary is proven. If you haven’t heard or seen your spouse for seven years; a presumption of death can be a ground for filing for a divorce in Nigeria. See S. 164 of the Evidence Act, 2011 and S. 16(2)(a) of the Matrimonial Causes Act.
Decree Nisi and Decree Absolute
Either one or more of the eight conditions above is used to convince the court that your marriage has broken down irretrievably. If the court is convinced, it will grant a Decree Nisi. A Decree Nisi will last for three months before it becomes a Decree Absolute. While it is still a Decree Nisi, parties’ cannot remarry at that point. Parties still enjoy the right to appeal the Decree Nisi until it becomes Decree Absolute.
When the Decree Nisi becomes Absolute, parties will no longer have the right to appeal such divorce. Parties can also remarry at this point.
N.B: The Decree Nisi cannot be made Absolute where there are children of less than 16 years in the marriage unless the court is satisfied that proper arrangements have been made for the welfare, advancement and education of the children.
I believe you now know how to file for divorce in Nigeria.
Written by: Joseph Okusare, Esq.
- Okusare Joseph is a lawyer, law blogger and YouTuber.
- He also consults for various client and companies.
- You can reach Joseph Okusare on firstname.lastname@example.org