Divroce - Legalnaija

What to prove to get a divorce in Nigeria | Adedunmade Onibokun

by Legalnaija | Oct 20, 2017 | Uncategorized

Official statistics from
the National Bureau of Statistics suggest that divorce is exceedingly uncommon
in Nigeria with just 0.2% of men and 0.3% of women having legally untied the
knot and well under 1% of couples admit to being separated. But as a Legal practitioner,
I seek not to agree with this statistic especially as I witness many divorce
proceedings in family courts and the newspapers are regularly awash with
reports of petitions for dissolution for marriages.

Moreover, it has been
argued in several quarters that the above statistics do not put into
consideration the number of marriages conducted under traditional law and also Islamic
law.

Under Nigerian law, a statutory
marriage can only be dissolved by a court order and divorce is guided by the
Matrimonial Causes Act. It is also worthy to note that under Nigerian law, marriage
is between a man and a woman, as Nigerian law does not recognize same sex marriages
or unions. The law also further provides a 14 year jail term, for anyone who participates
in same – sex unions or relationships.

With regard to petitions
for dissolution of marriage, Section 15(1) of the Matrimonial Causes Act provides
that, a petition may be presented to the court by either party to the marriage upon
the ground that the marriage has broken down irretrievably.

Submitting a petition for
dissolution of marriage does not however automatically mean that the divorce
will be granted, as the petitioner must be able to prove sufficient grounds to
warrant the prayer being granted. If the petitioner fails to prove this, even
if the divorce is desired by both parties, the petition will be dismissed.

The grounds that a petitioner
must prove to show that the marriage has broken down irretrievably are stated
in Section 15(2) of the Matrimonial Causes Act, they include –

a. That the other partner (i.e.
respondent) has willfully and persistently refused to consummate the marriage,
meaning that the other spouse has refused to have sexual intercourse since the
celebration of the marriage.

b. That since the marriage the respondent
has committed adultery and the petitioner finds it intolerable to live with the
respondent.

c. That since the marriage the respondent
has behaved in such a way that the petitioner cannot reasonably be expected to
live with the respondent.

d. That the respondent has deserted the petitioner
for a continuous period of at least one year immediately preceding the
presentation of the petition;

e. That the parties to the marriage have
lived apart for a continuous period of at least 2 years immediately preceding the
presentation of the petition and the respondent does not object to a decree being
granted;

f. That the parties to the marriage have
lived apart for a continuous period of at least 3 years immediately preceding
the presentation of the petition;

g. That the other party to the marriage
has, for a period of not less than one year, failed to comply with a decree or
restitution of conjugal rights made under this act;

h. That the other party to the marriage
has been absent from the petitioner for such time and in such circumstances as
to provide reasonable grounds for presuming that he or she is dead.

The dissolution of
traditional or customary marriage is however not as stringent as that under the
marriage act. A customary law marriage can be dissolved without judicial
pronouncement or intervention.

For more information about
how to get a divorce, you can talk to a lawyer or send a mail to the
undersigned.

Adedunmade Onibokun

Principal
Partner

Adedunmade
Onibokun & Co.

www.adedunmadeonibokun.com

dunmadeo@yahoo.com

Divorced But Married: The Disturbing Trend Of Fake Divorces | Jamiu Akolade Esq

by Legalnaija | Oct 10, 2017 | Uncategorized

The breakdown of a marriage is undoubtedly
a painful and life-changing event. But what could be more painful than finding
out that you are still married even though you are supposed to have been
divorced years ago?

I was instructed recently by Mrs. A to
claim maintenance for the child of her marriage to Mr. A who she had been
‘divorced’ from over three years before. According to her, Mr. A has been
inconsistent with the maintenance payments. My first response was to ask for a
copy of the order of court dissolving the marriage to have an idea of the
arrangements made by the judge for the welfare of the child post-dissolution.
What I saw next shocked me to the marrow.

I saw a supposed order for ‘nullification’
of marriage which purportedly dissolved the marriage summarily without a trial
and nullified the marriage from the day of celebration. For added measure, the
marriage was supposedly dissolved on the ground of ‘incompatibility’ between
the parties to the marriage which by the way lasted only two months. I was
convinced that the order was suspicious and required further investigation. A
few visits to the High Court registry confirmed my worst fear: This was a fake
order. It was not granted by any court but by one of the growing army of fake
divorce mercenaries What I found is a criminal racket that permeates the
marriage and High Court registries orchestrated by State officials and urchins
preying on the victims some of whom are willing and others unsuspecting,
looking for quick fixes to their marital woes and others needing it for more
criminal purposes – for emigration and other unspeakable frauds. Suffice to say
that we are taking action against the participants in this criminal enterprise
in the case of Mrs. A.

This got me thinking: how many people are
going around believing they are divorced when they are actually still married.
Mrs. A completely believed she was divorced and was in a relationship which
could have led to marriage (she would inadvertently have committed bigamy and
her ‘new’ husband would have been committing adultery with a married woman)
before this bombshell. She would not believe me until I produced the letter
from the court registry disclaiming the order. I then realized that citizens
need more education about how the marriage dissolution process works and
decided to pen down a few pointers to how the process works.

1.
A
statutory marriage conducted at the marriage registry or in an authorized place
of religious worship for which a marriage certificate is issued can only be
dissolved by a judge after hearing the parties on the factors which led to the
breakdown of the marriage. If you are given a ‘divorce order’ without having to
appear in court, that my friend is a fake divorce.

2.
Proceedings
for dissolution of a marriage is not complete until arrangements are made for
the welfare of the children of the marriage if any and other financial
provisions such as maintenance for the party entitled to it, settlement of
property, e.t.c.

3.
The
court is mandated to attempt reconciliation of the parties. This will happen at
different stages of the process. Before your lawyer files the suit, he is
expected to file a certificate confirming that he has advised his client on the
possibilities of reconciliation. During the proceedings, there is a compulsory
conference (meeting) which parties must have to explore settlement. After the
trial, there is also a three – month window within which the parties may
reconcile before the dissolution becomes absolute. Certainly, dissolution of a
marriage is not a tea party.

4.
Dissolution
of a marriage is not conducted at the marriage registry or the court registry.
It is done before a High Court Judge in the case of a statutory marriage or
before the judges of a Customary Court for customary law marriages. In the case
of Mrs. A, she fell into the hands of a fraudulent person at the registry who
she called for advice and was told the marriage could be ‘nullified’ at the
registry since the marriage was still within a year of celebration!

5.
Many people fall into this trap of fake
divorces due to privacy concerns. They are more than willing to adopt any
measure that does not involve them appearing in court to ‘wash their dirty
linens in public’. While a court appearance may be unavoidable, it is important
to know the best approach to achieving a dissolution without the sordid details
of the marriage. Parties can exploit the no-fault option of seeking dissolution
on the ground of living apart for 2-3 years before presenting the petition for
dissolution if their case falls under this head. In this way, nobody needs to
prove the fault of the other party and the court would dissolve the marriage without
an inquiry into this.

If you suspect you may have fallen into
this trap of fake divorces, my advice to you is to visit the High Court
registry to verify the order you have been given. If you find out that you are
‘divorced but still married’ then you will need to go through the process
outlined above all over again. I share your pain.

Jamiu Akolade Esq

T: @akoladejay

E: akoladejamo@yahoo.com

Lagos Nigeria.

Source

HOW TO PROVE YOUR PARTNER COMMITTED ADULTERY IN COURT

by Legalnaija | Nov 17, 2014 | Uncategorized

Credits – informationnigeria.org

Adultery is sexual intercourse between two persons of whom
one or both are married but not married to each other. Being able to prove
adultery is quite a difficult task especially if you have to show that there
was in fact sexual intercourse involved. Only an admission of the act or evidence
depicting the actual act is 100% proof of adultery because to prove adultery,
one must show that there was penetration of the male organ into the woman. The courts are aware of this fact, thus in
proving the existence of adultery; the courts will rely on indirect or
circumstantial evidence. The following are ways of proving adultery, though some
are circumstantial, others are more definite:-

Evidence of disposition and opportunity; for instance, if a married woman had been taken out clubbing for
over 7 hrs after dark, only for her date to bring her home, followed by both
alighting from the car and kiss passionately. That’s a strong evidence showing that
they had opportunity.

Cohabitation: where a married man/woman lives together under
the same roof with another person, adultery is strongly presumed.

Confessions: An admission of adultery is proof of same.

Entry in Register of birth: An entry into the register of
birth by a woman showing that someone other than her husband is the father of her
child amounts to a confession of adultery against her.

Blood tests: Blood tests can be used to ascertain the
paternity of a child and as such can be used as evidence of adultery, if the
child according to blood test is not the true child of the man.

Birth of a child after gestation period: When a wife gives
birth to a child, more than 280 days after her husband had sex with her, it
constitutes proof of adultery against the wife.

Visits to Brothels: When a ma visits a brothel frequently,
its proof of adultery.

Infections: Contracting a STI is proof of adultery except it
was proven that the STI was gotten via innocent causes.

Conviction for sexual related offences: When a married man is
convicted for raping or committing any sexual offence against someone who is
not his wife, it is strict proof of adultery.

Adultery must be voluntary, thus a married woman who is raped
cannot be guilty of adultery by virtue of that act.

Adedunmade Onibokun

@adedunmade

dunmadeo@yahoo.com

REFUSING TO CONSUMMATE; GROUND FOR DIVORCE

by Legalnaija | Sep 8, 2014 | Uncategorized

Toyosi and Kingsley have been married for a year and 6 months but Toyosi is very unhappy because since they got married, they have not had sex consummated the marriage. Toyosi after requesting time and time again for intercourse with Kingsley is now frustrated and it makes matters worse that Kingsley refused to give any explaination for his refusal. Toyosi has now been told that she can apply to court for the marriage to be dissolved on the grounds of Kingsley’s wilful refusal to consummate the marriage. Do you think it’s possible? Let’s find out.

Several weeks ago, a story about a man whose wife refused him sex for a month was trending on the internet, it was particularly interesting because the man prepared an excel document stating every reason the wife gave. Hope you caught the story. This takes me back to our scenario and the question if one can really apply for a divorce because a partner has refused the other sex to consummate.

Well the answer to that question is “yes”. Wilful refusal is a ground for divorce under the Matrimonial Causes Act. To establish the facts, the petitioner (person asking for a divorce) must show that the refusal is both wilful and persistent. A refusal is wilful if the person refuses to have intercourse for not just cause, thus a spouse who insists on the use of condoms cannot be said to have wilfully refused to consummate and if a spouse has a good reason to refuse consummation, such spouse cannot be said to have wilfully refused to consummate.

It should be noted that, the ground for a wilful refusal to consummate will not be valid if the couples had sex at least once after the celebration of the marriage and there can be no wilful refusal if no request for consummation was made in the first place.

By provision of the law, the wilful refusal must continue until the day the matter comes up in court. Thus an unscrupulous respondent can agree to consummation just a day before the date fixed for hearing, however at such instance, the courts will have to examine the particular facts of the case in determining the issue before the court.

From the foregoing it is obvious that consummation in a marriage is very important to the life span of that marriage and can be a ground for petitioning for a dissolution of the marriage.

Adedunmade Onibokun

@adedunmade

Adedunmade Onibokun is a legal practitioner, publisher and blogger. He holds an LLM in International Business Law from the University of Bradford and publishes the Nigerian law blog Legalnaija.