Introduction
Marriage under the Nigerian Matrimonial Causes Act is more than a private arrangement between two individuals. Once a statutory marriage is contracted, its dissolution becomes a matter for the court. Consequently, a spouse who desires to end the marriage cannot simply obtain a divorce merely because he or she no longer wishes to remain married.
The governing principle is that a marriage may be dissolved where the petitioner establishes that the marriage has broken down irretrievably. Section 15(1) of the Matrimonial Causes Act (“MCA”) provides that a petition for dissolution may be presented by either party on that ground. However, section 15(2) makes it clear that the court shall hold the marriage to have broken down irretrievably “if, but only if,” the petitioner satisfies the court of one or more specified facts.
This is important because it means that dissolution of marriage is not granted as of right, as a matter of convenience, or merely because one or both parties want the marriage to end. The petitioner must place sufficient and credible evidence before the court to establish one or more of the statutory facts.
The Sole Ground: Irretrievable Breakdown
Under section 15(1) of the MCA, the sole ground for dissolution of a statutory marriage is that the marriage has broken down irretrievably.
The expressions contained in section 15(2) are therefore not entirely separate grounds in the sense of creating independent causes of action. Rather, they are the statutory facts upon which the court determines whether the marriage has broken down irretrievably.
The Eight Statutory Facts
The Court of Appeal has repeatedly emphasized that a court cannot dissolve a marriage merely because it appears that the relationship has failed. The petitioner must bring the case within one or more of the facts specified under section 15(2). See, for example, Ibrahim v. Ibrahim (2007) 1 NWLR (Pt. 1015) 383 and Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151.
Section 15(2) of the MCA identifies eight circumstances which, if established to the satisfaction of the court, will result in the court holding that the marriage has broken down irretrievably.
1. Wilful and Persistent Refusal to Consummate the Marriage:
Under section 15(2)(a), the petitioner may rely on the fact that the respondent has wilfully and persistently refused to consummate the marriage.
The emphasis is on a deliberate and persistent refusal. Mere inability or an isolated failure to consummate the marriage does not necessarily satisfy the statutory requirement.
2. Adultery Coupled with Intolerability:
Section 15(2)(b) applies where, since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
It is therefore not sufficient merely to establish adultery. The petitioner must also establish the statutory consequence—that he or she finds it intolerable to continue living with the respondent.
3. Behaviour Making Cohabitation Unreasonable
Section 15(2)(c) covers cases where the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
This is one of the grounds most frequently relied upon in divorce petitions. However, allegations of “cruelty,” “bad behaviour,” incompatibility or irreconcilable differences should not be treated as automatically sufficient.
The petitioner must present evidence of the respondent’s conduct from which the court can reasonably conclude that continued cohabitation cannot reasonably be expected.
The courts have emphasized that the petitioner must establish the relevant conduct by credible evidence and not merely make generalized allegations.
4. Desertion for at Least One Year
Under section 15(2)(d), the petitioner may rely on the fact that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
Desertion is more than physical separation. The evidence must generally establish the elements required by law, including separation and an intention to bring the marital cohabitation to an end, subject to the particular circumstances of the case.
The Court of Appeal has recognized both actual and constructive forms of desertion.
5. Living Apart for Two Years Without Objection
Section 15(2)(e) applies where the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent does not object to the decree being granted.
This ground should not, however, be misunderstood as meaning that the parties can simply ask the court for a divorce and automatically receive one. The statutory period and the absence of objection must be established.
6. Living Apart for Three Years
Under section 15(2)(f), the marriage may be dissolved where the parties have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
Unlike section 15(2)(e), the provision does not make the respondent’s consent to the dissolution a condition.
Section 15(3) further provides that, for the purposes of paragraphs (e) and (f), parties are treated as living apart unless they are living with each other in the same household.
7. Failure to Comply with a Decree of Restitution of Conjugal Rights
Section 15(2)(g) applies where the other party has failed, for a period of not less than one year, to comply with a decree of restitution of conjugal rights made under the Act.
This is a less commonly encountered ground in contemporary divorce litigation, but it remains one of the statutory facts capable of establishing irretrievable breakdown.
8. Presumption of Death
Finally, section 15(2)(h) applies where the other spouse has been absent from the petitioner for such a period and in such circumstances as to provide reasonable grounds for presuming that the spouse is dead.
The Matrimonial Causes Rules prescribe additional matters that should be stated in a petition relying on this ground, including the latest date on which the petitioner had reason to believe the respondent was alive and particulars of inquiries made to locate the respondent.
Divorce Is Not Granted as of Right
One of the most important principles in matrimonial litigation is that a petitioner does not become automatically entitled to a decree simply because he or she has decided that the marriage should end.
The court has a statutory duty to examine the evidence and determine whether the requirements of the MCA have been satisfied.
The language of section 15(2) is particularly significant. It states that the court shall hold the marriage to have broken down irretrievably “if, but only if,” the petitioner satisfies the court of one or more of the specified facts.
Thus, the court does not dissolve a marriage simply because:
- The petitioner no longer loves the respondent;the parties have fallen out;the parties are incompatible;
- the respondent does not oppose the petition;
- the parties jointly desire a divorce; or
- the petition is undefended.
There must be evidence bringing the case within the statutory framework.
A recent High Court decision reiterated the principle that a decree of dissolution is not granted as of right or merely as a matter of course. The court emphasized that the dissolution of a freely contracted marriage is a serious judicial act which must be carried out in accordance with the law.
The Burden Is on the Petitioner
The petitioner bears the burden of establishing the facts relied upon in support of the petition.
Section 82 of the MCA provides the applicable standard by which matters of fact are proved in matrimonial causes: a matter is taken to be proved where it is established to the reasonable satisfaction of the court. Nigerian appellate decisions have repeatedly applied this principle in dissolution proceedings.
Consequently, merely pleading adultery, desertion, intolerable behaviour or separation is not enough. The allegations must be supported by evidence capable of satisfying the court.
In Bibilari v. Bibilari (2011) 13 NWLR (Pt. 1264) 207, the Court of Appeal emphasized that the petitioner must discharge the burden imposed by sections 15 and 16 of the MCA and establish the relevant facts to the reasonable satisfaction of the court.
What Happens Where the Petition Is Not Defended?
An important misconception is that where the respondent does not enter appearance, does not file an answer, or chooses not to contest the petition, the petitioner automatically obtains a divorce.
That is not the position.
Matrimonial proceedings concern the legal status of the parties, and the court still has a duty to satisfy itself that the statutory requirements for dissolution have been established. The courts have distinguished matrimonial proceedings from ordinary civil claims in this regard.
Therefore, even in an undefended divorce petition, the petitioner should be prepared to give evidence establishing the facts relied upon.
An unchallenged allegation is not necessarily the same thing as proof sufficient to satisfy the court.
The Importance of Credible and Specific Evidence
The quality of evidence is particularly important in divorce proceedings.
For example, a petitioner relying on section 15(2)(c) should not merely allege that the respondent is “wicked,” “unreasonable,” “violent,” or “impossible to live with.” The petition should contain material facts showing the conduct complained of, while the evidence at trial should substantiate those facts.
Similarly, a petitioner alleging desertion should be able to establish the circumstances surrounding the separation and the facts necessary to constitute desertion.
The Court of Appeal in Bibilari v. Bibilari noted that allegations must be supported by evidence containing sufficient details from which the court can reasonably infer that the marriage has broken down irretrievably.
Proof of One Statutory Fact
The statutory scheme is significant because the petitioner does not have to establish all eight facts.
Establishing one of the facts specified in section 15(2), where properly proved, is sufficient to enable the court to hold that the marriage has broken down irretrievably. Nigerian decisions have described proof of one of the statutory facts as sufficient proof of irretrievable breakdown.
The critical point, however, is that the petitioner must actually prove the fact relied upon.
Therefore, the real question in a dissolution petition is not simply:
“Do the parties want a divorce?”
It is:
“Has the petitioner established, by credible evidence and to the reasonable satisfaction of the court, one or more of the statutory facts showing that the marriage has broken down irretrievably?”
Conclusion
The Matrimonial Causes Act adopts the concept of irretrievable breakdown as the basis for dissolution of a statutory marriage in Nigeria. However, irretrievable breakdown is not established merely by a spouse’s desire to leave the marriage.
Sections 15 and 16 of the Act require the petitioner to bring the case within the statutory framework and satisfy the court of one or more of the prescribed facts. The court must therefore undertake a judicial enquiry into the evidence before granting a decree.
The principle is simple but fundamental: marriage is not dissolved merely because a party asks the court to dissolve it. It is dissolved because the law permits the court to do so after the petitioner has established the necessary facts by sufficient and credible evidence.
Accordingly, practitioners handling matrimonial causes should pay particular attention to the pleadings, the specific statutory ground relied upon, the material facts supporting that ground, and the evidence required to satisfy the court.
A decree of dissolution is ultimately a judicial determination affecting the legal status of the parties, not a mere formality or an order granted automatically upon the request of either spouse.