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Divorce is a legal process that marks the formal end of a marriage. In Nigeria, the Matrimonial Causes Act (MCA) is the principal law that governs divorce proceedings and the legal grounds upon which a party may seek to dissolve a marriage. Whether under customary, statutory, or Islamic law, divorce in Nigeria must follow established legal procedures.
This guide explores the recognized grounds for divorce under Nigerian law, explains what counts in court, and answers common questions related to divorce, separation, and marital rights. It also addresses the legal process for initiating a divorce and what evidence is required.
Overview of Divorce Laws in Nigeria
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In Nigeria, there are three main types of marriages:
- Statutory marriage (under the Marriage Act)
- Customary marriage
- Islamic marriage
This article focuses primarily on statutory marriages regulated by the Matrimonial Causes Act, Cap M7 LFN 2004, which applies to all statutory marriages registered in Nigeria.
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To obtain a divorce under the MCA, the petitioner (the person initiating the divorce) must prove that the marriage has broken down irretrievably.
What Does “Broken Down Irretrievably” Mean?
Section 15(1) of the Matrimonial Causes Act provides that a marriage may be dissolved if the petitioner can show that the marriage has broken down irretrievably. This is the only legal ground for divorce under statutory law in Nigeria. However, the Act provides eight factual situations (Section 15(2)) that count as proof of such breakdown.
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8 Legal Grounds for Divorce in Nigeria (Statutory Marriage)
1. Adultery
If one spouse has committed adultery and the other spouse finds it intolerable to live with them, this is a valid ground for divorce.
Example: A wife who discovers her husband is having an affair and cannot continue in the marriage may file for divorce based on adultery.
Evidence needed: Emails, texts, photos, witness testimony, or the birth of a child out of wedlock.
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2. Unreasonable Behaviour
Where one spouse has behaved in such a way that the other cannot reasonably be expected to live with them.
Examples of unreasonable behaviour:
- Physical or emotional abuse
- Addiction to drugs or alcohol
- Domestic violence
- Verbal abuse
- Persistent neglect or irresponsibility
Evidence: Medical reports, witness testimony, police reports, or text messages.
3. Desertion for at Least One Year
This means one party has intentionally left the other without their consent or justification, and has done so continuously for at least 12 months.
Example: A husband who walks out and refuses to return or communicate for a year.
4. Living Apart for a Continuous Period of Two Years (With Consent)
If both parties have lived separately for at least two years and both agree to divorce, the court can grant it.
Note: The consent of both parties is essential for this ground.
5. Living Apart for a Continuous Period of Three Years (Without Consent)
If the couple has lived apart for at least three years, either spouse can file for divorce without needing the other’s consent.
6. Failure to Comply with a Court-Ordered Restitution of Conjugal Rights
If the court has ordered a spouse to resume cohabitation and they refuse for at least one year, the other spouse may seek a divorce.
Example: A husband who refuses to return after a court order demanding reconciliation.
7. Spouse Missing for Seven Years or More
If one spouse has been missing and presumed dead for at least seven years, the other may petition for divorce.
The petitioner must show that they have made reasonable efforts to locate the missing spouse.
8. Incapacity to Consummate the Marriage
If one spouse is unable or unwilling to have sexual intercourse, and this condition existed at the time of marriage and continues, it may serve as a ground for annulment or divorce.
This ground applies primarily when the issue existed from the beginning and was hidden from the other party.
Also Read: How to File for Divorce in Nigeria: Step-by-Step Legal Process (Latest Guide)
Key Considerations Before Filing for Divorce
Eligibility: Who Can File for Divorce in Nigeria?
To file for divorce, the petitioner must:
- Be legally married under statutory law in Nigeria
- Be a resident in Nigeria for at least 12 months prior to filing
- Prove at least one of the eight grounds listed in the Matrimonial Causes Act
Waiting Period
No divorce petition may be filed within the first two years of marriage unless there is exceptional hardship or depravity (Section 30 MCA). A waiver may be granted in extreme cases, such as:
- Domestic violence
- Threat to life
- Fraud or misrepresentation
Legal Process for Divorce in Nigeria
- Consult a Family Lawyer: Essential to guide you through the filing and litigation process.
- File a Petition for Divorce: Filed at the High Court in the state where the marriage was conducted or where either spouse resides.
- Service of Court Papers: The other spouse is served notice and given time to respond.
- Hearing and Evidence Presentation: Both parties may appear in court and present evidence.
- Judgment and Decree Nisi: If the court is satisfied, it grants a provisional decree (decree nisi).
- Decree Absolute: Final divorce decree issued 3–6 months later, legally ending the marriage.
What About Children and Custody?
The court prioritizes the best interest of the child when determining custody, regardless of gender. Factors considered:
- Age and needs of the child
- Financial and emotional capacity of each parent
- Stability of the home environment
Custody may be:
- Sole custody
- Joint custody
- Split custody
- Visitation rights
Division of Property and Maintenance
The court may order the fair distribution of jointly acquired assets. Some factors considered include:
- Financial contribution of each spouse
- Welfare of children
- Pre-nuptial agreements
- Length of the marriage
Spousal support (maintenance) may also be granted temporarily or permanently depending on:
- Income disparity
- Health of both spouses
- Childcare obligations
Who Can Benefit from This Guide?
This article is helpful for:
- Individuals considering divorce
- Lawyers and legal researchers
- Family counselors and mediators
- Women’s rights advocates
- Social workers handling family and domestic cases
Important Notes on Customary and Islamic Divorce
Customary Divorce:
- Usually involves family elders or village heads
- Bride price refund may be required
- Grounds include adultery, cruelty, barrenness, or impotence
Islamic Divorce:
- Based on Islamic principles and guided by Islamic courts
- Types include Talaq (by husband), Khula (by wife), and Faskh (court-annulled divorce)
These systems operate independently but may be subject to review by secular courts if necessary.
Common Myths About Divorce in Nigeria
| Myth | Reality |
|---|---|
| You must catch your spouse in the act of adultery to divorce them | Circumstantial evidence can suffice |
| Divorce is automatic after separation | Legal divorce must go through court |
| Men always get custody | Custody depends on the child’s welfare |
| Only rich people can divorce | Legal Aid services are available for low-income individuals |
Final Thoughts
Understanding the legal grounds for divorce under Nigerian law is crucial for anyone seeking to end a marriage. While emotional pain and betrayal may fuel the desire for divorce, the law requires concrete legal grounds backed by evidence. By consulting a qualified family lawyer and preparing your case carefully, you can navigate the process smoothly and protect your rights.
TJ News Nigeria reports that divorce filings are rising among urban couples, driven by infidelity, economic hardship, and emotional abuse. As society evolves, so must the legal mechanisms protecting individuals in failing marriages.
References
- Matrimonial Causes Act Cap M7 Laws of the Federation of Nigeria 2004
- Nigerian Family Law and Practice – G. Akinseye-George (2022)
- National Human Rights Commission Reports on Domestic Violence (2023)
- Nigerian Bar Association Guidelines on Family Law Proceedings
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