GROUNDS FOR DIVORCE: A LEGAL DIGEST
By O. G. Oduntan Esq.

Marriage is usually the institution that has two people joined with the plan or desire for a unified purpose, a united future and a happy life. Love is almost always the cardinal condition or key certainty that fires up the level of attraction which results in passion, planning and commitment towards actualizing the desired reality. Most people are naturally attracted to their opposite but sadly spend the rest of their lives trying to change them. Where the emotional truth is passionately expressed with words, there are common promises like: “I will always love you” “You are my dream come true”, “I will love you for who you are”, “I will die for you”, “I can’t live, if living is without you” “I will always be there for you”.

So many expressions and promises of desire, love, honesty, faithfulness and assurance are poured out and shared in the build-up to marriage. In fact, most formal marriage ceremonies typically involve some specific and binding proclamations but afterwards; life realities hit, people change, people grow apart, people give up, people want to try new things and the human frailty of selfishness may just get the best of a person.

A Leadership executive has said: “Love involves a measure of dying. If you are not ready to let go of some parts of you, let go of some rights and prerogatives, then you are not ready to love”

The world is faster now. The level of self-centered dispositions, self-preservation ideologies and individualism has increased and is fast consuming the authentic foundations and benefits of true love, family and matrimonial coherence.

I will not deny knowledge of the fact that matrimonial disputes are naturally inescapable because of our truly distinct human temperaments. These personality differences, in the words of a marriage and family life consultant, “often go undiscovered and undiscussed before marriage. During the dating phase of the relationship, decisions are often made simply because he and she wants to please each other. After marriage when life gets serious and real, the desire to please each other is not as natural. When differences emerge, the logical thinker will seek to press the intuitive thinker into having logical reasons for their position. This is expecting and demanding the impossible. The intuitive person will never process life with the logic of the professor. If you try to force each other into your own personality mold, you may spend a lifetime in conflict.

Racism, sexism, antagonism, chauvinism etc., and all that aggressive and unreasonable belief that ‘my own’ thing or perspective is superior to all others are indeed real life diseases that can get the best of, the best of people when allowed to blossom.

Life is a journey of challenges and every marriage has challenges. These challenges come as different strokes are for different folks. Financial problems, for example, often snowball into chaotic matrimonial disputes. This is 2020 and yes we are in the “it’s-all-about-the-money” age as money makes almost everything better. I say ‘almost’ because the extremely wealthy and the average rich person can still have marital crises rooted in a different challenge.

Religion without faith is another major cause of matrimonial disputes as people often lose faith in the love they promised to cherish forever. Certainly, some even lose faith in themselves, ignore the place of the supernatural and lose faith in God, overlooking the fact that there is only so much a human can endure by natural or trained capabilities. The smartest of persons can make the silliest mistakes. No one will succeed by strength alone.

From the play documented in ‘The gods are not to blame’ by Ola Rotimi to the dilemma depicted in the film ‘Acrimony’ by Tyler Perry and, of course, the daily realities I get faced with as a Lawyer from married clients, it is understandable that most matrimonial disputes are clearly life challenges playing out as tests/examinations for students of the most composite, emotional and realistic human institution.

Generally, every contract is subject to termination or determination. Thus marriage as a contract is no exception. This piece explores the legal way by which a marriage can be dissolved. There are three types of Marriage in Nigeria i.e. Islamic Marriage, Customary Marriage and Statutory Marriage. It is pertinent to state that the kind of marriage contracted determines the form of divorce. This piece focuses on divorce under statutory marriage. It presents the reader, with other available options when divorce is not practicable.

The piece will be analyzed under the following headings;

Matrimonial reliefs,
Dissolution of marriage/divorce,
Claim for damages where adultery is committed,
Alimony/financial support, and
Procedure for divorce

*MATRIMONIAL RELIEFS*

Divorce (legally called dissolution of marriage) is a formal process by which a marriage contracted under the law is terminated thereby absolving parties of marital obligations. Dissolution of marriage is one of the several reliefs available to a couple seeking judicial intervention. Matrimonial reliefs are the remedies available to a party approaching the court. Generally, the reliefs include;

Nullity of a Voidable Marriage: This is where the marriage is not valid from the beginning but it is subject to one of the party to set it aside. The grounds includes, pregnancy before marriage (for other man), insanity, inability to consummate/impotency, venereal disease etc. The Petitioner must approach the court within twelve months of marriage and show lack of knowledge about a particular ground. The incapacitated spouse/the suffering couple cannot present the Petition. The document filed in court containing the grounds is called ‘Petition’. The person presenting it is called ‘Petitioner’ while the other party responding is called ‘Respondent’.

Nullity of Void Marriage: This is a fundamental defect that rendered the marriage void from the beginning. It provides no legal consequence i.e. ‘there is no marriage in the eye of the law’. The circumstances include, non-compliance with law, if parties are related by blood/marriage, lack of consent, under age and if either of the party is lawfully married before attempting to contract another marriage.

Judicial Separation: This is where the court put parties apart and relieves them of marital obligations. Here the marriage is subsisting, so none of the parties can contract another marriage. The husband is liable for maintenance, and in case of death; the spouse alive can share in intestacy. The order is discharged where parties voluntarily resumed cohabitation (this means living together) or make an application for cohabitation to the court.

Restitution of Conjugal Rights: This is where the Petitioner makes application to the court, requesting for restoration of conjugal rights (i.e. rights and privileges arising from marriage, e.g. love, companionship, affection, comfort and sexual relations). The petitioner must show readiness to cohabit, with evidence of written request to the respondent.

Jactitation of Marriage: This is where a person parades herself/himself as the wife/husband of another when in reality they are not married. The Petitioner can approach the court and seek for an order to stop the respondent from doing the wrong act. A divorced wife may continue to use the husband’s name. However, she is prohibited from using the name to commit fraud.

Dissolution of Marriage (Divorce): This is the focus of this piece. The focus will be shifted on dissolution of marriage hereinbelow.

DISSOLUTION OF MARRIAGE/DIVORCE

Divorce is regulated by law. It is a meticulous judicial procedure which the Petitioner must follow. There is only one ground by which a Petitioner can approach the court for divorce. The sole ground is that “the marriage has broken down irretrievably” (Section 15 (1) (a) Matrimonial Causes Act). The duty of the Petitioner is to prove to the reasonable satisfaction of the court that the marriage has broken down and cannot be retrieved. The Petitioner must adduce supportive facts to convince the court. Some of the supportive facts are provided by law (Section 15 (2) (a)-(h) Matrimonial Causes Act). The supportive facts include;

(a) Persistent refusal to consummate by the Respondent: This is when the Respondent repeatedly refused to have sexual intercourse with the Petitioner. This supportive fact is not to be pleaded if the couple had at least one sexual intercourse after marriage. It is only pleaded where the Respondent is yet to have intercourse with the Petitioner after the marriage. The Petitioner must show repeated willful refusal to consummate from the Respondent.

(b) Respondent Committed Adultery and the Petitioner find it Intolerable: Adultery means a situation where a married spouse have willful sexual intercourse with a third party. The Petitioner must adduce evidence to convince the court that adultery was committed. The court can infer adultery in the following circumstances; (i) admission and confession (ii) Respondent’s cohabitation with third party (iii) pregnancy (iv) frequent visit to hotels/club (v) contacting infectious disease. In order to succeed, the Petitioner must show intolerability (i.e. The adultery was unbearable).

(c) Respondent’s Unreasonable Behavior: This is where the Respondent acts in a weird and irresponsible manner, thereby making it difficult for the Petitioner to continue cohabitation. Irresponsible behaviors include: rape, sodomy, bestiality, refusal to pay maintenance, insanity, incarceration above three years etc., in which case parties have lived apart for at least six months.

(d) Desertion: This is where one spouse separates with the intention of permanently bringing the cohabitation to an end without the other party’s consent. The Petitioner can present a Petition for dissolution.

(e) Living apart for two years without objection: In this situation, the Respondent objection is crucial; because once it is shown that the Respondent objected then the plea must fail.

(f) Living apart for three years: Once it is established that the parties have lived apart for a continuous period of three years, the Petitioner is likely to succeed because further evidence may not be necessary.

(g) Failure to Comply With Decree of Restitution of Marriage. This is where there is a subsisting court order, directing the respondent to resume cohabitation and there was non-compliance. The court will grant dissolution.

(f) Presumption of Death: A person shown not to have been heard of, for a period of seven years, is presumed death by law (Section 164 Evidence Act 2011). Once it is established that the other party is not alive, the court will grant dissolution.
Note: At least one of the facts stated above should be pleaded, in addition to the ground that the ‘marriage has broken down irretrievably’ before a Petition for dissolution of marriage can be granted.

CLAIM FOR DAMAGES WHERE ADULTERY IS COMMITTED

Under the Matrimonial Causes Act, the Petitioner can demand damages from the third party who committed adultery with the Respondent and join the third party as a Co-respondent. However, the case of adultery cannot be heard after three years from the date of commission. A man who commits adultery with another man’s wife can be sued for damages. Also a woman who commits adultery with another woman’s husband can be sued for damages.

ALIMONY/FINANCIAL SUPPORT

It is called differently depending on the jurisdiction, whether it is called alimony, spousal support, aliment or spouse maintenance; the meaning is the same. It is a provision either by the husband for the wife or the wife for the husband after divorce. The husband and wife may agree on the amount and the manner of payment and summit it to the court for approval or the couple may allow the court to decide on the amount to be paid and the manner of payment. The main idea for alimony is to provide financial support for the spouse with low income. In awarding alimony, the court takes into consideration the duration of the marriage, number and age of children, quantum of income and the age of the benefiting spouse.

DIVORCE PROCEDURE

STEP ONE: The marriage must have broken down irretrievably.

STEP TWO: Try to settle the problem by reporting to family members. In case of cruelty or physical abuse report the matter to the nearest police station.

STEP THREE: Contact a lawyer or a Non-Governmental Organization or speak to a closed trusted friend/family, or read article online about divorce.

STEP FOUR: Decide the appropriate matrimonial relief, consider all the available options. Divorce should be the last option.

STEP FIVE: File a Petition in court. At this stage the service of a lawyer is needed. A marriage conducted in Lagos Marriage Registry can be separated in any State High Court in Nigeria. The resident of the man becomes that of the woman immediately marriage is conducted. If the man is not living in Nigeria the woman may have little issue.

STEP FIVE: Attend reconciliation meetings (usually organized by the court). If reconciliation fails proceed to trial and present all the necessary evidence and call necessary witness(es). In a situation where the marriage certificate cannot be found, call at least two persons that witnessed the marriage to testify.

STEP SIX: Wait for the court to deliver judgment. It may take months or years.

STEP SEVEN: If the court refused to give an order for dissolution of marriage (divorce), you will have to go back and continue with the marriage. In this case you may gather additional evidence and return to court or settle the differences and continue with the marriage.

STEP EIGHT: If the court grants your prayer for divorce, you are free like a bird. At this juncture, cohabitation will be terminated, move out to a place of your choice and live a happy life.

STEP NINE: If alimony was awarded in your favor, relax and receive the money. Alimony will stop when the person receiving it begins cohabitation with a lover or enter into a new marriage. If alimony was awarded against you, then get ready to begin payment before the court sends you to prison.

STEP TEN: Do not rush into another marriage without understanding the person. If you are single reading this piece, then you are the luckiest person on earth because you will avoid the temptation of rushing into marriage for the purpose of wealth, physical appearance and material considerations. Money may finish, beauty and handsomeness will fade away, but a good character will remain till the last breath.

Conclusively, to everyone making plans, building relationships, getting married or who’s been married for a while, it is my humble submission that the perfect approach to matrimonial disputes is this; like a diligent and determined student, do everything you can to succeed, understand that failure is not desirable but when you do fail, it is not the end of the world and it is sure not the end of your life.

DAILY LAW TIPS by O. G. Oduntan Esq.

*HARMFUL WIDOWHOOD PRACTICES (TRADITIONS) ARE ILLEGAL IN NIGERIA.*

Many are the afflictions of widows in Nigeria. Most communities and traditions have been in existence long before the independence of Nigeria in 1960 and her latest constitution of 1999. Hence, ignorance, quest for dominance, selective amnesia and wickedness among others, often embolden many Nigerians (including the educated ones) to assume that their cultures and traditions supersede the constitution of Nigeria.

“We cannot depart from the ways of our forefathers”, “It is a taboo, to fail to do this ….” and “… it has never been done before, it cannot be done” are common defining statements that justify the inhuman and degrading treatment of widows across Nigeria (however, there is no known harmful practise for widowers).

There is no justification for any harmful widowhood practise in any part of Nigeria or under any religion or tradition in Nigeria. If a widow is suspected of any offence, let her be reported to the law enforcement agencies.

Harmful widowhood practises are illegal and unlawful. They are punishable with
2 years imprisonment or and fine of N500,000.00, that is for any person that subjects a window to any harmful traditional practice. Punishments for attempting such offence or assisting and aiding an offender is imprisonment for 1 year and or fine of #200,000.00.

We should not deceive ourselves, many are still subjecting widows to these inhumane rites, so if you know a widow that is being subjected to such inhumane rites by her deceased husband's relatives, advice her to report same to the police, doing this will never stop her from inheriting from her deceased husband's properties. It is advisable to contact a Lawyer in a case like that.

Kindly note that the federal law creating the above offence is operational in the Federal Capital Territory, Abuja. Similar state laws are now operational in Anambra State, Ebonyi State and Oyo State. Soon, more States will enact similar laws as we encourage states to condemn violence against persons. However it is advised that the punishment above, provided by the Violence Against Persons (Prohibition) Act 2015, be made to be minimum punishment and not just maximum punishment to avoid releasing offenders with mere slaps on their wrists.

My authorities are sections 15, 47 and 48 of the Violence Against Persons (Prohibition) Act, 2015 and similar laws across states in Nigeria.

*BREACH OF PROMISE TO MARRY IN NIGERIA: What You Need To Know By Olusoji. G. Oduntan Esq.*

Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology, and it has been defined as the voluntary union for life of one man and one woman to the exclusion of others. See *HYDE V. HYDE {L.R.} 1 P. & D. 130.*

Accordingly, an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage.

Marriage involves stages; the meeting of the parties, dating (in most cases), discussions, the promise to get married and getting married.

It is the breach of this promise to marry that I wish to examine, thereby informing each party the extent of his rights and liabilities.

A promise to marry may give rise to a contract to marry. Where it gives rise to contract to marry, it means that the valid elements of a binding contract are present and that the breach of the agreement can give the jilted party the right to sue for damages. In a simplest term, when a guy or a girl who has promised to marry the supposed fiance or fiancée and either of them failed to fulfill the promise to marry and the jilted party can sue to other party

It will be pertinent to note that the exchange of love and affection are not enough to give rise to promise to marry. See *EZEANAH V. ATTA (2004) 7 NWLR (PT. 873) 468.*

The fact of Atta’s case is that the Respondent and the Appellant were into a relationship which made the Respondent (guy) to fund her to further her studies in England in 1994. The Respondent was in Nigeria, but he made visits to London to see the Appellant. It would appear the love or romance continued when the appellant was in England. Subsequently, the Respondent provided the money with which the Appellant used to purchase the land in dispute in Abuja. However, the land was purchased in the name of the Appellant but the certificate of occupancy was signed by the Respondent. When the relationship went sour the Respondent refused to hand over the certificate of occupancy. The Appellant sued.

At the Supreme Court, the main issue was:

*“Whether the learned Justices of the Court of Appeal were right in holding that the property in dispute was procured by the respondent for the appellant in furtherance of a marriage agreement”*

The Supreme Court per Niki Tobi J.S.C. held thus:

“In view of the fact that the case of the respondent is breach of agreement on the part of the appellant to marry him, I will take here what constitutes breach of agreement to marry. Two elements are necessary to constitute a breach of agreement or promise of marriage. First, the party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990, or under Islamic Law or under Customary Law, on the part of the other sex. Second, the party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage… A mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry… I could not place my hand on any evidence by the witnesses that the property in dispute was developed because the appellant and the respondent agreed to marry. If anything, appellant said in her evidence that there was no issue of marriage between them.”

He continued and further observed that:

“While the law may at times require that an agreement to marry should be in writing, the law will be prepared to hold, in appropriate cases, that the parties intended to marry in the absence of any written agreement…

It seems to me that the learned trial Judge was carried away by the quantity, quality and magnificence of the gifts in coming to conclusion that there was an agreement to marry. Is that the law? No. Premarital gifts, in order to qualify as gifts in furtherance of an agreement to marry, must be clearly, cleanly and unequivocably traceable to an agreement on the part of the parties to marry. Where gifts part from any of the parties to the other on love and not on the business of agreement to marry, with all the ingredients of offer, acceptance, consideration, intention to create legal relation and capacity to contract the agreement, the court must not come to the conclusion that the parties agreed to get married hence the gifts. That is not talking law.”

In *USO V. IKETUBOSIN (1975) WRNLR 187*, the defendant promised to marry the plaintiff in 1947. In 1957 the defendant married another woman in breach of his promise to the plaintiff. Iswin, J., held that the defendant’s act constituted a breach for which the plaintiff was entitled to damages. See also *MARTINS V. ADENUGBA (1946) 18 N.L.R 63 and MABAMIJE V. OTTO (2016) LPELR 26058 (SC).*

*PROOF OF BREACH OF PROMISE TO MARRY:*

Flowing from the foregoing, in order to succeed in an action for breach of promise to marry, the Claimant (the jilted party) has to prove two elements:

1. The party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990, or under Islamic Law or under Customary Law, on the part of the other sex.

2. The party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage. See *EZEANAH V. ATTA* (supra).

In order to satisfy the court that there was a binding promise of marriage, the jilted party has to show that consideration was furnished to support the promise and may need to corroborate facts by calling a witness or witnesses as the case may be.

It is a basic principle of law that a party can only enforce a contract if the party has given consideration, unless the contract is under seal (which derives its validity from the form). Consideration need not be adequate, but sufficient, i.e., something of value in the eyes of the law, which could be in form of performance.

Lush J. defined ‘Consideration’ in *CURRIE V. MISA (1875-76) LR 1 APP CAS 554* in the following words:

“A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other”

This means that a man in the mood of affection that makes a promise (with or without engagement ring) to his partner who merely says I agree to marry you too, without more may not be liable for a breach of promise to marry.

The law expects such lady to furnish consideration to support such promise for it to be binding in law. Consideration in this circumstance can come in different forms such as:

1. Following the man to the Registry to take out notice of marriage (Bann).

2. Allowing him to come and see her parents officially (maybe through or with his parents).

3. Foregoing her plan to further her studies on the clear term that it is on the premise of the promise.

4. Resigning from workplace to go over to the state or country of the other party in furtherance of the promise and with his knowledge.

5. Turning down other suitors in furtherance of the promise and to his knowledge.

6. Getting pregnant on the agreement of the parties in furtherance of the promise.

From the above, a promise to marry is breached if a party fails to carry out his or her further obligations or does an act that hinders the other party from fulfilling his or her obligations under the contract.

The breach can be express, like where the party expresses the intention not to continue with the marriage arrangement, it could be by implication, such as failure to attend the marriage ceremony, getting married to another person, as seen in *USO V. IKETUBOSIN* (supra), it could also be anticipatory such as avoiding further communications, etc.

Hence, the law is trite that where there is wrong; there is remedy (ubi jus ibi remedium). Where the jilted party has sufficiently and successfully proved the above elements of breach of promise to marry; the court will award damages (specific and general) for breach of promise to marry to recover for the wasted years, psychological trauma and emotional trauma, financial loss, foregone alternative, etc. The quantum of damages will flow directly from the breach.

The court cannot hold that there is a valid contract of marriage where the basic elements are lacking. No wonder PATS-ACHOLONU JSC in *EZEANAH V. ATTA* (supra) had this to say:

“In fact this is a case that the respondent should have spared himself the agony of going through the court processes. For him, when the going was good he lavished love (I imagined it was reciprocated), money and eventually landed property on the appellant. When the tide turned, he fell back on non-existent agreement to marry and urged the court to go the extra mile of pronouncing the existence of a resulting trust. I refuse to lend hand to assuage the feelings of a lover whose romance went away. The love that once bound these two people and now got frosted can be likened to verse xxxv of Shakespeare “Sonnets” a sort of lamentation, and also verse 1 of “Passionate Pilgrim”. Thus we have in this case so much love and then so much pain. It is the way of the world” (emphasis is mine).

It is also noteworthy that a claim could be maintained against a third party who induced the beach of the contract of marriage.

*DEFENCES TO BREACH OF PROMISE TO MARRY:*

Notwithstanding the above, there are defences a party can put up as justification for breaching the contract of marriage. Just like every other contract, the vitiating elements of a valid contract apply in marriage agreement. They include: fraud, duress, undue influence, mistake, illegality, incapacity, unconscionability, frustration, misrepresentation, etc.

Other factors could afford a defence in peculiar circumstances such as: HIV and AIDS status, genotype, blood group, family background, cheating, intolerable behavior, engagement in homosexuality or lesbianism, rape, frequent conviction, lack of care, assault, security threat, etc.

Whether reduction in affection could be a valid defence is a question of fact to be proved before the court.

It should be noted that the knowledge of the above factors before making the promise to marry or accepting such promise may affect the validity of such defence (volenti non fit injuria).

The burden of proving any of the above defences is on the Defendant. See section 133 of the Evidence Act, 2011.

Furthermore, it should be noted that the court will be reluctant to order for a specific performance in an action for breach of marriage. This is on the premise that the court does not give an order that will be incapable of enforcement. See *MRS OLAWEPO SOGO V. HEBN PUBLISHER, SUIT NO: NICN/IB/41/2018.*

*CONCLUSION*

In conclusion, it is advised that one should make proper enquiries and take little time to properly examine the other party before making a promise to marry or before accepting a promise to marry.

Secondly, parties are advised to clearly define and agree on the contract of marriage and should not leave everything to assumption. Thus, parties should have consensus ad idem to avoid an awkward end.

Finally, the advice of a legal practitioner should be sought for in appropriate circumstances.