Credits –

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


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 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.