Barriers To Divorce In Nigeria – EBELECHUKWU AROH-NWOKA

In Nigeria, marriages can be classified as statutory or customary/Islamic marriage. Customary marriages are marriages contracted in accordance with the dictates of the native laws and customs. Customary marriages can be dissolved for any reason or no reason at all. On the other hand, statutory marriages {loosely referred to as ‘court marriage’) are marriages contracted in line with the provisions of the Marriage Act. The law requires proof that the marriage has broken down irretrievably before it can grant a dissolution of a statutory marriage. Despite this, there are certain barriers or bars that may prevent the court from dissolving a statutory marriage even when it has been established that the marriage has broken down irretrievably. This article, “Barriers to Divorce in Nigerian Law,” discusses these barriers, which include condonation, collusion, and connivance. These barriers serve as absolute defenses in divorce cases concerning statutory marriages. Understanding these barriers is crucial for anyone considering a divorce in Nigeria. knowledge of these barriers/bars can help individuals better navigate the complexities of Nigerian divorce law.

Barriers/bars to Divorce

There are three barriers that can prevent the court from dissolving a statutory marriage even if it has been proved that the marriage has broken down irretrievably, namely:

Condonation
Collusion
Connivance

Condonation

Condonation as defined in Black’s Law Dictionary, 6th Edition at page 295 means ‘pardon of offence, voluntary overlooking, and implied forgiveness by treating offender as if the offence had not been committed. Under the Matrimonial Causes Act, a decree of dissolution of marriage shall not be made where petitioner had condoned the wrongful actions of the respondent which the petition is predicated upon.1. The above provision of the law shows that if a spouse forgives the other of an offense such as adultery and they continue to live together, the act of forgiveness can act as a barrier to obtaining a divorce based on that adultery. For instance, if a husband forgives his wife for committing adultery and they continue to live together as husband and wife, he cannot later rely on that adultery which he had forgiven to file for divorce.

However, the defence of condonation is not a bar to a petition for nullity of marriage. A petition for nullity of marriage unlike a petition for divorce seeks to declare a marriage null and void as if it never legally existed. Even if a spouse condoned the facts he is relying on for the court to nullify a marriage, the fact that he had earlier condoned it cannot be a barrier to the court granting the prayer for nullification of the marriage. The above principle of law was clearly demonstrated in the case of Etebu vs Etebu2 in that case the petitioned knew that that the wife was married to another man. He was also aware that marriage was not dissolved before they contracted a statutory marriage. He later filed a petition for nullification of the marriage on the ground that the wife was lawfully married to another at the time of their marriage. The wife raised the defence of condonation, because she disclosed her earlier marriage and its status to him and he condoned it. The Court of Appeal in its judgment held that the defence of condonation is only a bar to dissolution of statutory marriage, not not a petition for nullity of marriage,

Collusion

Collusion involves an agreement between the spouses to deceive the court in order to obtain a divorce. The Matrimonial Causes Act prohibits collusion and it provides that a decree of dissolution of marriage shall not be made if “the petitioner has colluded with the respondent in presenting or prosecuting the petition.3 An example of collusion is where both spouses agree to falsely claim that one of them committed adultery to expedite their divorce process, the court will likely dismiss the petition upon discovering the collusion.

Connivance

Section 26(1)(c) of the Matrimonial Causes Act provides that “a decree of dissolution of marriage shall not be made if the petitioner has connived at the act or conduct constituting the ground of the petition. Connivance occurs when one spouse consents to or encourages the other spouse’s misconduct, such as adultery, only for the spouse to later rely on the misconduct which he/she had encouraged or consented to as a fact to show that their marriage has broken down irretrievably. The concept of connivance is rooted in the idea that a person should not benefit from a situation they helped to create. Hence, courts will dismiss the petition if connivance is successfully established.

Conclusion

In conclusion, while the Matrimonial Causes Act provides a clear ground for divorce, it also establishes important barriers/bars such as condonation, collusion, and connivance and the court will not grant any prayer for dissolution of marriage if any of these bars is successfully proved, irrespective of the fact that the ground for divorce has been established. Anyone considering divorce should be aware of these barriers and seek legal advice to navigate the complexities of Nigerian divorce law. By doing so, they can ensure that their petition is valid and has the best chance of being granted by the court or rely on these barriers or bars as a defence against a petition for dissolution of a statutory marriage.

Footnotes

1. Section 26(1)(b) of the Matrimonial Causes.

2. Etebu v. etebu (2018) LPELR-46250(CA) (Pp. 17-43 paras. D).

Section 26(1)(b) of the Matrimonial Causes Act.