At present there is no provision for a no-fault divorce in Nigeria. Unlike in the United States of America, no-fault divorce doesn’t exist in Nigeria. The Law of Divorce in Nigeria – the Matrimonial Causes Act – doesn’t support a no-fault divorce. Certain facts must exist before you can file a petition for divorce. A client of mine was quite surprised when I told him that he couldn’t sue for divorce, because he had no valid basis under the law.
What a No-Fault Divorce Is
A no-fault divorce is a type of divorce that does not apportion fault/blame to either of the spouses. The idea behind it is that neither the husband nor the wife of a marriage should be responsible for the breakup. Under a no-fault divorce, the petitioner simply states that she wants a divorce based on “irreconcilable difference”.
The USA is notorious for no-fault divorce; all the 50 states have passed laws entrenching one form of no-fault divorce or the other. Conversely, in the U.K, from which Nigeria copied its divorce law, no-fault divorce is non-existent. They are, however, on the verge of passing a no-fault divorce into law.
Misconceptions about the Existence of No-Fault Divorce in Nigeria
Some legal writers in Nigeria have suggested, and indeed affirmed, that the Matrimonial Cause Act provides for some form of no-fault divorce. Their often sited portion of the Act is Section 15(2)(e-f) which state that “The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if…:”
(e) the parties to the marriage 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 a decree being granted;
(f) the parties to the marriage have lived apart for a continuous period of a least three years immediately preceding the presentation of the petition;
It is likely that these authors have two basic misconceptions when affirming that the Nigerian Act supports a no-fault divorce.
Who is at Fault?
Firstly, it is possible that they have a faulty understanding of the concept of a no-fault divorce as it obtains in foreign countries. To fully understand the no-fault divorce concept in relation to the Nigerian Act, one must first define what “fault” is.
A faultmeans “responsibility for an accident or misfortune” (noun); or “to criticize for inadequacy or mistakes” (verb). So, a no-fault divorce means that nobody is to be criticized or nobody is responsible for the divorce. Bearing this definition in mind, the sections of the Act quoted above couldn’t have provided for no-fault divorce.
By way of illustration, let us say that a man files a petition for divorce and states the reason for the divorce as “separation for 3 years”, it raises an obvious question which must be answered, and which the court often wants to know: “What led to the separation?” or “Who or what is at fault for the separation?” And the answer would automatically result in apportioning blame or the misfortune or criticism to the husband, the wife or both of them, whether they intended it or not.
You Cannot Agree to Divorce
The second error made by the legal writers is their failure to reckon with sections 26 & 27 of the Act in the writings. These sections are pivotal to instituting divorce petition in court. The sections state that a couple cannot plan or agree to divorce. Where they do so, the divorce will be refused:
26. decree of dissolution of marriage shall not be made if the petitioner has condonedor connivedat the conduct constituting the facts on which the petition is based.
27. A decree of dissolution of marriage shall not be made if the petitioner, in bringing or prosecuting the proceedings, has been guilty of collusionwith intent to cause a perversionof justice.
So, where husband and wife agree or plan to live separately in order for them to meet the requirement of divorce, the court, if it becomes aware of the fact and the divorce is so challenged on that basis, would refuse to dissolve the marriage, notwithstanding that the couple have lived apart for 2 or 3 years.
Conclusion
Finally, in the UK where their Matrimonial Causes Act is much the same as ours, since we literally copied our law from them, they don’t consider themselves to having a no-fault divorce section in their Act, notwithstanding the existence of sections 15(2)(e-f). Neither do (should) we.
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