HOW TO DIVORCE A NIGERIAN MAN BY DESERTED WIFE

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HOW TO DIVORCE A NIGERIAN MAN BY DESERTED WIFE

HOW TO DIVORCE A NIGERIAN MAN BY DESERTED WIFE

 

One major pre-condition for instituting a divorce matter in Nigeria is domicile of the parties. Domicile determines the jurisdiction of the court i.e. the power of the court to validly hear and determine any case/petition.

Domicile means the country where a person has their permanent home; where he/she exercises his legal rights and privileges, or where the person has a substantial connection with.

The difference between Domicile and Residence is that Residence is the bodily place where a person lives without intention to retain as their permanent abode while Domicile is the true permanent home to which a person intends to return and remain even if currently residing in another place. There must be an intention to have Nigeria as your permanent home and place where your rights and privileges are exercised. However, a person can have only one domicile while a person can have several residences.

A deserted wife, whose husband is no longer within the jurisdiction or whose husband has changed a domicile, may want to ask- how to divorce my Nigerian husband in light of the provision of the requirements of the law for the domicile of the parties? Divorcing a Nigerian husband would have ordinarily been a herculean task or almost impossible for a deserted wife if not for the special provisions of the Nigerian’s Matrimonial Causes Act, which shall be discussed below.

In Nigeria, the laws that regulate Matrimonial causes are:

  • The Marriage Act
  • The Matrimonial Causes Act and,
  • The Matrimonial Causes Rule.

The concept of Domicile is of utmost importance to matrimonial matters

Domicile as the basis of Jurisdiction

Domicile is important to divorce proceedings in Nigeria as the court will consider the domicile of the petitioner before it can entertain the dissolution of marriage, as the legal status will be determined by the law of the place in which the petitioner is domiciled.

The Section 2(3) of the Matrimonial Causes Act 1970 states that:

“for the avoidance of doubt a person domiciled in any state of the federation is domiciled in Nigeria for the purpose of this Act and may institute proceedings under this Act in the High court of a state whether or not he is domiciled in that particular state”.

 

Domicile is so important that it forms the foundation for hearing matrimonial causes if it is not established; the Court will lack the jurisdiction and necessary competence to entertain the matter. Every divorce petition must state the particulars relating to the domicile of the petitioner in Nigeria.

In the case of Bhojwani v Bhojwani (1995) 7 NWLR Pt 407, the importance of domicile in divorce proceedings was emphasized, in this case the petitioner a Singaporean claimed to be domiciled in Nigeria filed for divorce in the High Court of Lagos state, the Respondent then brought a motion seeking an order that the petitioner was not domiciled in Nigeria and therefore the court lacked the jurisdiction to hear the petition for dissolution of marriage. The trial court held that it had the jurisdiction to dissolve the marriage, the respondent appealed the judgment to the court of Appeal, where Sulu Gambari J.C.A of the appeal court set aside the ruling of the trial court stating upon facts available that the petitioner was not domiciled in Nigeria by choice and that the determination of the legal domicile is paramount since it, rather than the actual residence, controls and determines where a person may exercise his right to vote, legal rights and privileges including the ascertainment of a marriage domicile.

The Supreme Court upholding the decision of the Court of Appeal held that the appellant needed to be domiciled in Nigeria before he could institute divorce proceedings here.

 

Special Provisions as to the Wife’s Domicile

 

The wife’s domicile is one acquired by dependence. In this respect, the domicile of the wife automatically follows that of her husband and cannot acquire one of her own while the marriage still subsists. Therefore a foreigner married to a Nigerian man can institute a matrimonial action in Nigeria.

Ordinarily, the court that has jurisdiction to hear a divorce matter is the court of the domicile of the husband; this has shown to cause hardship to a wife who is deserted by her husband. Therefore, the Matrimonial Causes Act provided a special provision under Section 7(a) to mitigate the likely hardship on women stating that: “A deserted wife who was domiciled in Nigeria either immediately before her marriage or immediately before the desertion shall be deemed to be domiciled in Nigeria”.

The provision of this Act is to mitigate the hardship that may arise to a deserted wife whose husband has absconded from domicile, otherwise, the wife would have to go to the country where the husband is now domiciled to file a petition.

Consequently, where her husband has deserted a woman, her domicile is Nigeria for the purpose of matrimonial causes proceedings and she has the right to institute a petition in the Nigerian Courts.

 

Grounds for Instituting Divorce in Nigeria

Parties to divorce proceedings are called Petitioner and Respondent. The petitioner is the person who institutes the action for divorce by filing a Petition, while the respondent responds by Answer to the Petition.

Under the Nigerian Law, there is only one ground for divorce that is provided under Section 15 of the Matrimonial Causes Act. Pursuant to the Section 15(1) of the Act, the grounds in which a petitioner can institute a petition for divorce as stated by Section 15(1) of the Act is as follows:

“A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.

This provision of the Act makes irretrievable breakdown the sole ground for divorce. Where the petition fails to ask for dissolution on that ground, the petition will not succeed.

The Act further states that the court hearing a petition for a decree of dissolution of marriage shall hold that the marriage has broken down irretrievably if the petitioner satisfies the court of one or more of the following facts as provided under Section 15(2) of the Matrimonial Causes Act. The facts include the followings:

  • That the respondent has willingly and persistently refused to consummate the marriage. In this instant, the petitioner has to prove that not only did the respondent persistently refuse to consummate but that petitioner willingly made efforts repeatedly to consummate the marriage.
  • That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. For a petition to succeed on this fact, the petitioner must testify that he or she finds it intolerable to live with the respondent, and just rely on the mere allegation of adultery as a ground for irretrievable breakdown of the marriage.
  • That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. For the petition to succeed, the petitioner must prove instances of such behaviours. Without prejudice to this provision Section 16 of the MCA lists a number of acts that can satisfy this fact as follows:
  1. Since the marriage, the respondent has committed rape, sodomy or bestiality
  2. Since the marriage, the respondent for a period of not less than 2 years been a habitual drunkard, or habitually intoxicated by reason of taking sedatives, narcotics or stimulating drugs.
  3. Since the marriage, the respondent has within a period not exceeding five years suffered frequent convictions for a crime of which the respondent was sentenced to imprisonment for not less than 3 years
  4. Habitually left the petitioner without reasonable means of support.
  5. Where at the date of the petition the respondent is of unsound mind and unlikely to recover
  6. Where the respondent has within the period of six years preceding the date of petition been confined in an institution of persons of unsound mind.

Mere averments of incompatibility will not suffice as sufficient fact to obtain a decree of divorce.

  • That the respondent has deserted the petitioner for a continuous period of at least one year preceding the presentation of the petition. In calculating the period of one year, the court will not take into account any period during which the parties resumed living with each other. Where there was an agreement to live apart, the petitioner cannot be said to be deserted.
  • That the parties have lived apart for a continuous period of at least two years immediately the presentation of the petition and the respondent does not object to the decree granted. The parties in this instance are not living with each other in the same household.
  • That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
  • That the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal rights made under the act. The court in making the order would satisfy that the petitioner desired conjugal rights to be rendered and was willing to render such to the other party. The petitioner would prove that the respondent had ignored previous requests for such.
  • That the other party has been absent from the petitioner for such time (seven) years as to provide reasonable grounds for presuming he or she is dead. In this instant, the petitioner would establish proof that the respondent was continually absent for the petitioner to believe that he/she was not alive at any time within that period.

In conclusion, the procedure for how to divorce a Nigerian man by a deserted wife is not different from the procedure for an ordinary divorce process in Nigeria. However, the Act has given an opportunity for any deserted wife whose husband must have abruptly changed a domicile to continue to use the domicile of the said husband as a basis for the jurisdiction of the court to hear the divorce petition.

 

Written by Family Law Team at Resolution Law Firm

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