FAMILY LAW 1.7 MATRIMONIAL CAUSES (3) DISSOLUTION OF MARRIAGE
The two years rule:
Section 30 of the Matrimonial Causes Act (dealing with the two years rule) provides that no proceeding for dissolution of marriage or divorce shall be instituted within 2 years of a marriage without the leave of the court.
Where the divorce proceedings are based on the facts of, wilful refusal to consummate the marriage, adultery, commission of rape, sodomy or bestiality.
This rule may be seen as an attempt by the courts to prevent arbitrary entry and exit into and out of marriage.
The court may grant leave where;
Refusal to grant the leave would impose exceptional hardship or it involves exceptional depravity on the part of the other party to the marriage.
In fay v. fay;
lord Scarman stated that the determination of what is exceptional is essentially a matter for the judge… the hardship must be shown to be something out of the ordinary.
In construing what exceptional means, the courts are advised to take into cognizance, the peculiar situation of the parties rather than the objective view. The judge should also take into account the hardship that might be manifest if the application is not granted. They should also carefully asses the evidence adduced by the affidavit of the applicant.
In Blackwell v. Blackwell,
The wife applied for leave to present a petition on the ground of the husband’s adultery and assault on her, the court held that the hardship suffered was not exceptional.
In akere v. akere
Leave was sought on the ground of exceptional depravity. The wife alleging that the man committed adultery with three women one the cousin and he had inordinate sexual demands, he was physically violent and that he even infected the applicant with venereal disease and turned her out of his home. This was held to be exceptional depravity on the part of the respondent.
Also Williams v. Williams
The court held that burning the applicant’s certificates, engineering books, failure to cook for him, threat to kill him, and many other absurd behaviors of the wife constituted exceptional hardship.
In dealing with the application to grant leave, the courts would usually take into cognizance, the interest of the children, whether there has been an attempt at reconciliation and public policy and the desire to maintain the theme which is to prevent arbitrary entry and exit to and from marriages.
Prior to 1970, Nigeria’s law on divorce was based on matrimonial offence theory which dates back to the old English celestial courts. The theory states that a marriage may only be dissolved if a spouse has committed a matrimonial offence like adultery, cruelty, desertion, and so on.
The of the Matrimonial Causes Act replaced the English rules and created only one ground by virtue of Section 15(2) provides only one ground;
- That the marriage has broken down irretrievably.
It goes futher to state 8 facts each of which would enable the courts to come to such conclusion. They include;
Section 15 (2) a to h.
A, wilful and persistent refusal to consummate
B, adultery which the petitioner finds intolerable to live with.
C, intolerable behavior.
E, continuous period of 2 years living apart and no objection to the grant of the decree.
F, at least 3 years from the presentation of the petition been living apart
G, that the other party has for a period of not less than 1 year refused to comply with a decree or restitution of conjugal rights made under this act.
H, that the other party has been absent for so long a time that it can be presumed that he/she is dead.
WILFUL AND PERSISTENT REFUSAL TO CONSUMATE;
Up till the time of the petition.
In hardy v. hardy the term “wilful and persistent” was seen as conscious refusal to consummate despite a number of requests from the other spouse.
The whole history of the marriage must be considered.
Adultery and intolerability.
Adultery is defined as the voluntary (freewill and not under some influence or involuntariness) sexual intercourse between a spouse and a third party of the opposite sex other than the husband or wife. Extra-marital intercourse. There has to be adultery making it intolerable to live with the respondent.
Fajembola v. fajembola
The husband caught the wife committing adultery with the houseboy in the marital bedroom and later he also caught her committing adultery with the driver. It was held that such second occurrence satisfied the second condition of making it intolerable to live with her.
To establish adultery, there must be some penetration of the female organ by the male organ as such, gratification other than sexual intercourse is not adultery. Mere familiarity and fondness is not adultery unless there it is shown by evidence that there was an opportunity to commit adultery and the parties cannot explain.
Akinyemi v. akinyemi
The respondent and co-respondent were fond of each other. They were found kissing. It was established that before then, they had spent over 5 hours together to which they cannot account for. The Supreme Court held that it was proper to draw an inference for adultery because they could not explain what they were doing as such it amounted to an opportunity.
The birth of a child by the wife when it can be established that the husband had no access can constitute evidence of adultery.
Where a spouse contacts venereal disease, a presumption of adultery is raised.
Where a spouse has left the matrimonial home to live with another spouse, there is a presumption of adultery. Evoroja v. evoroja.
Bigamy is also an evidence of adultery.
Confessions could also be given but the courts are usually cautious in accepting all confessions for fear of collusion.
Section 32 of the Matrimonial Causes Act makes it necessary that the co-respondent must be made a party to the proceeding.
Intolerable conduct: the conduct should have some reference to the marriage.
Thurlow v. Thurlow;
The wife suffered from epilepsy since infancy and her condition started to become worse. At times she became aggressive and threw objects and caused damage to the household properties. Sometimes she would wander the streets and this caused stress to those who looked after her. It was held that the husband cannot be reasonably expected to put up with the behaviour.
Johnson v. Johnson
It was held that unreasonable refusal of sexual intercourse, habitual drunkenness, inordinate sexual indulgence with the housemaids, and so on amounted to intolerable behaviour.
Intolerable conduct may include those enumerated in Section 16 of the Matrimonial Causes Act; rape bestiality, sodomy, habitual drunkenness, obsession to drugs, frequent convictions and leaving the house without aid or support for the spouse, attempted to murder or assault the petitioner, cruelty,
Section 17 of the Matrimonial Causes Act provides there should be an attempt to reconcile the parties by asking them to live for 6 months after the last incident the court finds in the evidence. To see if there can be futher cohabitation between the parties.
D, DESERTION: It entails the unreasonable separation of one spouse from the other with the intention to bring cohabitation to an end. Without the other’s consent (even if the petitioner is pleased to see the respondent go).
The desertion must have lasted for a continuous period of one year immediately preceding the presentation of the petition.
Desertion may be by physically running away from the home or living there but severing all marital relationships with the other spouse. As lord merrivale pointed out that it refers to a state of things. The test being are they living in the same household or just under the same roof? In my own words, a home is not a house but a feeling.
In Hope v. Hope
The spouses occupied separate bedrooms and marital intercourse was severed. Although the wife was still cooking his meals and they ate in the same dining room. It was held that there was still one household.
However, in Walker V Walker
The parties lived in the same house but the wife withdrew and locked the bedroom. They severed all communications, she refused to perform any domestic duties. They communicated by the exchange of notes. It was held that the parties were not living together.
Separation due to mutual consent between the parties is allowed, maybe for military service, job posting… does not constitute desertion.
Such mutual agreement can lead to desertion where the other party refuses to resume cohabitation for no just cause.
Ikpi v. ikpi
The parties were cohabiting in Ibadan when the husband was transferred to Zaria on his job posting. The wife was to join him later if maternal facilities were discovered to be available in Zaria. The husband later wrote to the wife assuring her that there are maternal facilities in Zaria. She refused to join him. It was held that the wife was in desertion by refusing to join him in Zaria.
Desertion can be justified where the spouse leaves for reasons that could constitute a ground for divorce, so as not to amount to condonation. Mere inconvenience is not a just cause.
Sode v. sode
The wife left her matrimonial home, alleging that life in zaria is too booring and the weather is always either too extreme during harmattan. It was held that the reason was not a good ground.
Section 18 of the Matrimonial Causes Act provides that there can be constructive desertion where there is an expulsive conduct on one of the parties justifying the desertion of the other party. The test of reasonableness is applied.
TERMINATION OF DESERTION.
Can be brought to an end if before the expiration of the 1 year, either or both of the parties do any of the following;
- Genuine Offer to return (bound to accept or be in risk of desertion, except the deserter committed a marital offence and the petitioner is not willing to condone).
- Petitioner’s adultery
- Resume cohabitation (accompanied with mutual intention to set up a home and resume cohabitation)
- Separation of the spouses.
F, Three years separation.
Section 15(2) (f) of the Of the Matrimonial Causes Act where parties have been continuously separated for at least 3 years immediately before the presentation of the petition, the court may reach a decision that the marriage has broken down irretrievably.
G, failure to comply with the restitution of conjugal rights for a continuous period of not less than one year. The court may imply that refusal to resume cohabitation may be indicative of the fact that the marriage has broken down irretrievably.
H, PRESUMPTION OF DEATH
Continuous absence from the petitioner for at least 7 years immediately preceeding the application for the petition such that the petitioner has no reason to believe that the respondent is alive. The petitioner should establish that there has been no communication and that there has been efforts to ascertain the location of the other party. A decree nisi may be made but if the respondent is found, it shall not be made absolute as such be rescinded.
- Petitioner’s adultery (that has not been condoned)
- Petitioner’s desertion (except there is a good cause for deserting)
- Conduct of the petitioner that contributes to the ground complained of.
- Exercise of the courts discretion. (in bull v. bull, it was held that inexercising discretion, the court should take cognizance of the interest of the parties, their children if any, the possibility of reconciliation and public policy. In blunt v. blunt it was seen as weighing the need to enforce the sanctity of marriage and considerations that would make it unjust or contrary to public policy to insist that a broken relationship be maintained.
Condonation: Implies forgiveness and reinstatement. Resumption of cohabitation followed with the intention to live together as husband and wife.
In martins v. martins:
The woman was unable procreate for the husband. He went to get a woman into the home and started to have sexual intercourse. The wife then complained after the conception of the second child. The court held that there has been no condonation because the woman is at the receiving end and is not expected to go anywhere else.
Connivance: where a petitioner has encouraged or contributed to the misconduct complained. Based on the doctrine of volenti non fit injuria.
Obiagwu v. Obiagwu.
The wife petitioner consented to the introduction of the co-respondent Patricia (for the purpose of bearing children for the husband) into the matrimonial home. The wife then petitioned for a dissolution on the ground of her husband’s adultery with patricia. Oputa J as he was then refused to grant a decree of divorce on the ground that the adultery was connived.
COLLUSION: an agreement usually for a consideration to procure a suit for divorce with the intent to pervert justice. Where on agreement, a true case is established by false evidence.
Section 29 of the Matrimonial Causes Act provides that no decree of divorce shall be made unless the nullity petition is first dismissed. Because a court cannot pronounce on a null marriage when there is no marriage there in the first place. Before a decree nisi is made absolute, the court has to be satisfied that there has been necessary arrangements for the care of the children if they are under 16 years.
Dissolution of marriage customary law.
Compared to statutory cases, there are no stringent or well laid down uniform rules. The family usually plays an important role in the settlement of domestic disputes.
Modes of dissolution
May be by none-judicial means or by order of an appropriate customary court.
Non-judicial Divorce: by the mutual agreement of the spouses. The families may then reach an agreement on the repayment of bride-price.
The husband may unilaterally bring the marriage to an end if he sends his wife away. The wife may also run back to her parents if the husband is cruel or intolerable.
The Declaration of Biu (Native Marriage and Custom) Order 1964 provides that a husband can divorce his wife by any of the following ways;
- Granting of divorce by a court.
- Oral repudiation in the wife’s presence and in the presence of two adult male witnesses.
- A written repudiation signed by the husband.
Under the Maliki School; the husband can repudiate the marriage by talaq. The third immediate and consecutive pronouncement of the talaq, the marriage is repudiated. Unless it was done in the heat of anger without any intention to end the marriage.
The drawback of the non-judicial form of divorce is that there is no record keeping and the wife is always at the receiving end.
Declaration by a customary law court. This usually occurs after all reconciliation attempts of the family has failed.
GROUNDS FOR DIVORCE IN CUSTOMARY LAW:
They may include; adultery, cruelty, witchcraft allegation, sterility, impotence, loose character, harmful diseases, and so on.
Section 7 of the marriage, divorce, custody and adoption of children by-laws order 1958 which applies to the looood states provide the following grounds;
- Bethrotal under marriageable age
- Refusal to consummate the marriage
- Imprisonment of a party for a crime of five years or more.
By virtue of the limitation of dowry law of the eastern states it seems that the bride price to be returned should not be more than 60 naira.
There is no strict rule on the return of bride price but it should be within a reasonable time.