The dissolution of a Customary Law marriage is quite different from the dissolution of a marriage celebrated under the Act: that is, a marriage celebrated in a licensed place of worship or in a Registry. While the dissolution of marriage under the Customary Law can be done extra-judicially, dissolution of a marriage celebrated under the Act must be done in the High Court of any state in Nigeria.
Customary Law marriage is easily dissolved because it lacks any formalities unlike the dissolution of a marriage celebrated under the Act which is far more cumbersome to dissolve because of so many formalities and the fact that our courts are not favourably disposed to granting a divorce.
Dissolution Of A Marriage Celebrated Under The Act
Section 15(1) of the Matrimonial Causes Act (MCA), states that, a court hearing a petition for a dissolution of marriage must first be convinced that the marriage has broken down irretrievably (emphasis mine).
The test for whether a marriage has broken down irretrievably is subjective; that is, it depends upon the attitude, behaviour etc of the parties to a marriage. It is possible for parties to a marriage to have differences which make it intolerable for them to live with each other. If they file for a divorce and the court finds out upon evidence adduced by both parties and the averments in their affidavits that their differences are reconcilable; the court would strike out the petition for divorce and encourage the parties to reconcile.
What constitutes the irretrievable breaking down of a marriage has been further expanded by Section 15(2) of the MCA which states that, for a marriage to be said to have broken down irretrievably the petitioner (the wife or husband who has filed for a divorce) must satisfy the court of some or more of the following facts:
- Wilful and persistent refusal of the respondent (the wife or husband against whom the petition for divorce is filed) to consummate the marriage.
- The commission of adultery by the respondent and the intolerance of the petitioner to be able to live with him or her.
- The respondent’s behaviour in a manner that the petitioner could not reasonably be expected to live with him or her.
- Desertion of the respondent for a continuous period of one (1) year immediately preceding the presentation of the petition.
- Living apart of the spouses for a continuous period of at least two (2) years immediately preceding the petition and if the respondent does not object to the petition.
- Living apart for a continuous period of three (3) years immediately preceding the presentation of the petition.
- The failure of the other party for a period of not less than one (1) year to comply with the decree restoration of conjugal rights.
- Absence of the other party from the petitioner as to be presumed dead.
Section 30 of the MCA provides that any marriage which is not up to two (2) years cannot be applied upon to be dissolved. This is otherwise known as the “Two-year Rule”.
This simply means that, before an application can be brought before the court for the dissolution of a marriage, the parties to that marriage must have been married for at least 2 years. This is because of the sanctity of the institution of marriage and the respect the society accords it.
However, certain situations and circumstances may make the court to allow an application for a dissolution of marriage where the parties have been married for less than 2 years.
Section 30(1) provides that, no action for divorce can be brought within two (2) years of marriage without the leave of court except where the reason for such intended divorce are based on any of the following facts:
- Wilful and persistent refusal to consummate the marriage.
- Adultery such as the petitioner finds it intolerable to live with the respondent.
- Rape, Sodomy or Bestiality.
By the provisions of Section 30(3) of the MCA, the Court has the discretion to grant leave to a petition for divorce within 2 years if the refusal to grant leave would impose exceptional hardship on the applicant and there is evidence or proof of exceptional depravity on the part of the other party to the marriage.
There is no precise legislative meaning for the phrase, “exceptional“. Therefore, the definition is totally at the discretion of the judge.
However, the judge while assessing the facts leading to the definition of “exceptional” must be certain that the hardship or the depravity is not just common but something out of the ordinary.
What Amounts To Exceptional Hardship Or Depravity?
In the case of Akere V Akere (1962) WNLR 328, the Court held that there was exceptional hardship on the applicant and exceptional depravity on the part of the respondent in a case where a wife alleged that her husband’s offences included:
- Adultery with three women one of whom was her cousin.
- Inordinate sexual demands even when the applicant was sick and just discharged from the hospital.
- Physical violence.
- Constant neglect and quarrels.
- Infecting the woman with a venereal disease and asking her to leave the matrimonial home.
A similar conclusion was reached by the court in the English case of Williams V Williams (1979) 1 ALL ER 556, where it was alleged by a man that his wife had:
- Burnt his certificates and Engineering books.
- Burnt his clothes.
- Threatened to kill him.
- Failed to look after him.
- Refused to perform her wifely duties.
- Deserted him.
- Starved him of sex.
The Standard For Assessing Exceptional Hardship Or Depravity
The test must be subjective; that is, it must be dependent upon the particulars of each case and not on the basis of what a reasonable man or the ordinary man on the street would think or how he would react in a given circumstance.
The court is supposed to weigh not just the present pain or hardship complained of but must also consider the quantum of future pain and hardship to be suffered in the event of the refusal by the court to grant leave pending the expiration of 2 years.
How To Make An Application Under Section 30 Of The MCA
An application for leave to commence divorce proceedings within 2 years of marriage contrary to Section 30(1) & (2) of the MCA, may be made ex parte (behind the other party) and must be supported by an affidavit certifying facts which must include:
- Particulars of the exceptional hardship to be suffered by the applicant if the application is refused or the exceptional depravity on the part of the other party.
- The grounds upon which the petition for divorce if leave is granted.
- Particulars of any previous application for leave under Section 30(3) if any and the reaction of the court to it.
- The particulars of any living child of the marriage at the time of filing the application; the particulars of the child must include the name, sex, date of birth, place of birth and the present residence of such a child.
- Particulars of any previous attempts to reconcile the parties and its result.
- Particulars of any and every other fact which would indicate the likelihood or otherwise of reconciling the parties before the expiration of the 2 years.
- The Certified True Copy (CTC) of the Marriage Certificate must also be attached and filed with the application.
Factors To Be Considered By The Court Before An Order For Leave
- The interests or welfare of any child or children of the marriage.
- The likelihood of the parties reconciling if leave is refused.
- The averments made in any affidavit opposing the application.
It should be noted that, if leave is granted in error or on the basis of the averments supporting the application for leave or by misrepresentation or distortion of facts, the court may at the hearing of the petition for divorce adjourn the matter sine die (indefinitely) or dismiss the petition on grounds of the misrepresentation or concealed facts.
Custody Of Children Under The Act
Section 71(1) of the MCA, provides that:
In proceedings with respect to the custody, guardianship, welfare, advancements or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration and subject thereto, the court may make such order in respect of those matters, as it thinks proper.
The courts usually take into consideration the age, sex, personal preferences of the child, the arrangement made by either party to the marriage for the upbringing and education of the children, the children’s social background, the need to keep them together, the moral welfare of the children and the financial position of the parties.
Most of the above considerations formed the basis for the judgement of the court in the case of Nzelu V Nzelu (1997) 3 NWLR 472.
Dissolution Of Marriage Under The Customary Law
Customary Law marriage is usually a bilateral contract between two families – the husband’s family and the wife’s family. Therefore, either the wife or the husband can initiate a divorce action but the unilateral act of one party, especially of the wife cannot bring about a divorce. The families of the two spouses must participate in the divorce proceedings just as they did during the contracting of the marriage.
The family of the wife can initiate the dissolution of a marriage after obtaining the consent of their daughter. This is done by withdrawing her from her husband’s house (especially where he maltreats her) and refunding the bride price.
On the reverse side, the members of a husband’s family do not have the right to directly initiate their son’s divorce but can persuade him to divorce his wife.
Customary Law doesn’t prescribe any length of time a party must be married before initiating a divorce action. A divorce can take place at any time after the celebration of the marriage.
Grounds For Divorce Under A Customary Law Marriage
There is no specific legislation for grounds of divorce but there are certain circumstances and reasons that would necessitate a divorce. They include the following:
- Adultery – If it is committed by a man, it would not form a ground for a divorce because a man is entitled to marry more than one wife, but where a woman commits adultery, it becomes a ground for a divorce.
- Sterility of either spouse or impotence of the man.
- Husband’s failure to maintain his wife and children.
- Lack of respect.
- Addiction to crime and criminalities.
Custody Of Children Under The Customary Law
Under the Customary Law, a father has exclusive custodial rights over the children of his marriage. This right can be transmitted to his family members. A wife does not have such rights over her children.