Marriage and Divorce: Laws relating to joining together and putting asunder

By
Prof. Adeniyi Olatunbosun

Vice Chancellor

KolaDaisi University, Ibadan

Introduction

Marriage is an institution of a universal concept and one of the distinguishing features of

marriage is that, it is presumed to be a union for life between a man and a woman. The institution
is recognized and respected all over the world. As a social institution, marriage is founded on and
governed by the social and religious norms of the society. The available historical perspective of
the institution of marriage may have begun from the existence of the first human beings on earth;
when God created Adam and Eve and gave them the viability of recognising each other as
married couples. God placed them in the Garden of Eden and gave them responsibilities as
couples saying; “…it is not good for a man to be alone. I will make a companion who will
help.”1 Marriage in Christendom, is the most sacred institution in human affairs as it is ordained
by God Himself and it is supposed to be a loving, intimate relationship between a man and a
woman geared towards procreation and parenting, companionship and fulfillment of social and
economic necessities.

Types of Marriage

There are three ways of creating the status of marriage in Nigeria: by customary law, Moslem
law and statute law. The first two classes are polygamous while the third is monogamous. Each
of the three classes has different legal incidents and effects The Marriage Act regulates Statutory
Marriage2, this form of marriage is essentially monogamous and it is within the exclusive
legislative list of the Federal Government of Nigeria. Under this system, a man who is married
to a woman is prohibited from entering into another form of marriage be it customary or
statutory with another woman during the subsistence of the first marriage. Thus, these systems of
1
Genesis Chapter 2 verse 18
2
Marriage Act 1914 Cap M6 of the Laws of the Federation of Nigeria 2004 as amended.
marriage are incompatible with one another, although they have operated side by side in Nigeria
for over a hundred years without a clash, at least from the legal point of view.

Section 33(1) of the Marriage Act, Cap. 218 Laws of Federation of Nigeria, 1990 provides:
“A statutory marriage is void where either of the parties to it is already married by
the native law or custom to any person other than the person with whom the
statutory marriage is being contracted.”

Going by this provision, one can literally interpret this section to mean that if Mr. A married
Miss B under the Act, but had been married to Miss C under native law and custom, then the
marriage to Miss B is void.

Also, Section 3(1) (a) of the Matrimonial Causes Decree 1970 states:
“a statutory marriage is void where either of the parties is, at the time of the
marriage, lawfully married to some other person.”

Accordingly, it is crystal clear that there is legal parity as to the validity of competing customary
marriage and statutory marriage. The determining factor is the first in time. This is in
consonance with the maxim of equity that where equities are equal the first in time, prevails.
Thus, the Marriage Act prohibits supervening effects of a particular brand of marriage over
another. Therefore, once a man has contracted a valid marriage be it customary or statutory, he
cannot during the existence of such a marriage contract a different form of marriage with a third
person. In effect s.33 of the Marriage Act prohibits a man already married under customary law
from marrying another person under the Act while the customary marriage subsists. In the same
vein, s.35 prohibits a man who is married under the Act from contracting a valid marriage under
native law and custom during the continuance of the statutory marriage. In the words of Section
35:

Any person who is married under this Act … shall be incapable

during the continuance of such marriage, of contracting a valid
marriage under native law or custom; but save as aforesaid nothing
 in this Act contained shall affect the validity of any marriage contracted under or
in accordance with customary law, or in any manner apply to marriages so
contracted.

The effect of violating these provisions makes whatever subsequent marriage(s) conducted to be
null and void. The penalty for either of the two cases is imprisonment for five years under the
Marriage Act 3. From the foregoing provisions of the two sections, there is harmonized
punishment of five years term of imprisonment, though two separate offences have been
committed. D.A. Ijalaye, exemplified these two positions in this way:

Section 47 deals with the offence which may be described as marrying by the
wrong method, since the man has the capacity to take a second wife by customary
law. In the case of section 48, we have the offence analogous to bigamy. This
offence may be described as the offence of taking another wife when there is no
capacity to do so by any means.”4

It is obvious that by these provisions, the Marriage Act does not desire the mixing of the two
systems, the intentions of the drafters of the Act seem to suggest that a party, more particularly a
man, since he is the one capable of contracting two seemingly subsisting marriages must make
up his mind under which of the two systems he wants to marry, if he chooses customary system
he has capacity to marry as several wives as possible and where he ventures into the realm of
statutory marriage, he must be prepared to abide with the tenets that this is a union of one man
and one woman to the exclusion of all others as defined by Lord Penzance in Hyde v. Hyde.5.
Statutory Marriage

This type of marriage is the voluntary union for life of one man and one woman to the exclusion
of all other persons. In essence, it is said to be monogamous in nature and it is often referred to
as “Christian Marriage” This type of marriage is regulated by the provisions of the Marriage Act

3
Sections 47 and 48) of the Marriage Act
4
Marriage Laws in Nigeria – Harmonization or Unification? The Nigerian Bar Journal Vol. XII
1974 pp. 21 – 31 at pp. 27).
5
1866 LR 1 P & D 130
and it is within the exclusive legislative competence of the Federal Government of Nigeria. 6 A
monogamous marriage, which is the same as statutory marriage in England. Statutory marriage is
universally accepted by all common law countries as “the voluntary union of life of one man and
one woman to the exclusion of all others during the continuance of the marriage. The definition
given in the case of Hyde v. Hyde7 has three aspects: First, the marriage must be a voluntary
union thus, there must be free consent of both parties to the union and the absence of this can
vitiate the union. Second the marriage should be a life union, though this does not imply that the
union is indissoluble, but that the parties’ intention should be for life unless dissolved by process
of law and natural event such as death of either party. Third, it must be a union of one man and
one woman to the exclusion of all others, the marriage must therefore be monogamous.

Status of Husband and Wife in Marriage

Under Statutory Marriage a monogamous relationship is created, such that neither party can
contract subsequent marriages until the existing one is dissolved. This form of marriage is
strictly between the parties to it to the exclusion of all others. Parties to statutory marriage are
equal to the extent of their marital relationship and the Act governing them does not confer or
promote inequality since the parties are regarded as one because upon the celebration of the
marriage the wife is incorporated into the husband.

Conversion of customary marriage to statutory marriage

Under customary law, a man is entitled to contract customary marriage at first with a woman and
thereafter contracts another customary marriage with a second woman. This is an essential
feature of customary law marriage whereby a man enjoys legal freedom to have plurality of
wives under this system and each marriage is intended to exist for life. Therefore, where a man
is married under customary law and contracts a subsequent statutory marriage which fails to
comply with the essential and formality of such statutory marriage or where the said statutory
marriage is defective, whatever legal status that such a man intends to confer on the spouse of
that marriage will be of no effect based on the principle that one cannot put something on
nothing and expect it to stand. The position of customary law is that all wives of a man under
customary marriage have equal status and that any purported choice or preference by a man to
6
Marriage Act 1914 Cap M6 of the Laws of the Federation of Nigeria 2004 as amended.
7
(1866) Vol. 14 LT 188.
accord special status on any of the wives through the celebration of the statutory marriage either
in the Registry or in the Church is of no effect whatsoever, except and of course, if he has
divorced all other wives contracted under customary marriage.
In other words, if a man contracts a customary marriage with the first woman and thereafter
enters into statutory marriage with the same woman and later on contracts a customary
marriage with a second woman, if it is established that the purported statutory marriage with the
first wife does not exist or invalid, then what remains with the marriage with the first woman is
that of customary marriage and accordingly the second customary marriage with the second
woman remains valid.

The Nigerian Marriage Act makes provision for the conversion of customary marriage to
statutory marriage so that if a man marries a woman under custom, he can later remarry the same
woman under the statute8. But there is no similar provision for the conversion of a marriage
under the Act into a customary law marriage. It is a common practice among Nigerian men of
social standings to have many wives and there have been instances where men already married
under the statutes taken additional wives under the customary law without dissolving their earlier
statutory marriage, a practice that is unlawful and void. This practice, though is an apparent
breach of the law does not make such a practice lawful. It represents a common breach of the
law9.

Conversion is a process whereby a marriage is changed from its original form into another. In
private International Law, this process is called Mutability of Marriage, an arrangement that can
be done in several ways, but under Municipal law in Nigeria, there is only one type of
conversion that is legally permissible and this is, the conversion of customary marriage into a
statutory marriage. It is therefore, possible to convert a customary marriage only by the parties
remarrying one another and not in any other way. The rationale behind this singular method of
conversion is because the Marriage Act was passed for the purpose of encouraging monogamy
8
See Ohochuku v. Ohochuku (1961) 1 All ER 253.
9
See Okay Achike: Judicial Approach to Defects in Marriages Ceremonies in Nigeria, in The
Nigerian Law Journal Vol. 5, 1971 at p.141. See also Prof. A.B. Kasunmu: The Law of
Husband and Wife in Western Nigeria, Integration of customary and Modern Legal Systems in
Africa University of Ife Press 1971.
and it cannot therefore allow a monogamous union to be converted into a potentially polygamous
union by virtue of S.35 of the Marriage Act10.

Legal elements of conversion

In order to establish that conversion has taken place, there must be a valid marriage under the
Act. This implies that the entire essential requirements of a valid marriage under the Act must
have been complied with; otherwise the purported conversion remains a mere charade or
ceremony within the eyes of law. Jadesola Akande remarked thus:
“It is common among Christian couples to perform the ceremony
required by customary law and then follow this up with a religious
service in a place of worship. By this they then belief has
converted their marriage into a statutory one. But the
solemnization of the ceremony in a church or chapel is not the only
requirement, if at all it is one of the requirements, of a valid
marriage under the Act …”

The general preponderance of opinions of jurists on Nigerian family law is that a customary
marriage ceases to exist as soon as the statutory Marriage has taken place and that the customary
Marriage no longer exists in fact and in law 11.These views imply a conclusion that the customary
marriage and all conferred matrimonial rights fizzle out; so that the right to a refund of the dowry
on dissolution of the statutory marriage is extinct

Essentials of a statutory marriage

A statutory marriage may be celebrated in any licensed place of worship or in a Registrar’s office
– under Sections 21 and 27 Marriage Act. A marriage in a Registrar’s Office must be contracted
10
See also the case of R v. Princewell (1963) NMLR 54.
11
See I.O. Agbede Recognition of Double Marriages in Nigeria Law 1968 17 ICLQ 735; D.A. Ijalaye Capacity to marry
under Nigerian Customary Law, Nigerian Bar Journal 1967 Vol. 3, pg. 20; Itse Sagay: Multiple Marriages in Nigeria
– A Conflict of Law with Culture, NBJ Vol. XII 1974 pg. 82; A.B. Kasunmu The Matrimonial Causes Decree 1970: A
Critical Analysis, Nigerian Journal of Contemporary Law Vol. 2 No. 1 pg. 98; Akande, The Legal Problems of
Converting Customary Marriage into a Statutory Marriage in Nigeria being a Paper presented at the National
Conference on Marriage Laws in Nigeria.
in the presence of two witnesses with open doors, between the hours of ten o’clock in the
forenoon and four o’clock in the afternoon upon satisfactory compliance by the parties to the
provisions on preliminaries to Marriage in the following manner:

(a) notice of intention to marry in Form A;

(b) upon receipt of this notice, the registrar shall enter the notice in a book, to be
called the Marriage notice book. He shall publish such notice by affixing a copy
of the same to be affixed on the outer door of his office, until he grants his
certificate or until three months shall have elapsed. See Sections 7 and 10
Marriage Act;
(c) the registrar at the expiration of twenty-one days and before the expiration of
three months from the date of the notice, upon payment of the prescribed fee,
shall issue his certificate as in Form C provided one of the parties had sworn to an
affidavit disclosing that one of the parties has been resident within the district in
which the marriage is intended to be celebrated at least fifteen days earlier that
each of the parties is twenty-one years old; that there is not any impediment of
kindred or affinity or any other lawful hindrance to the marriage and that neither
of the parties to the intended marriage is married by customary law to any person
other than the person with whom such marriage is proposed to be contracted.

Upon satisfactory compliance with these preliminaries, the Registrar shall then fill up, and he
and the parties and witnesses shall sign, the certificate of the marriage in duplicate, and shall file
the other in his office.

The production of the said certificate before a court of law is an evidence of the existence of a
statutory marriage. Mere production is not a complete proof, the court shall examine the veracity
of its genuineness, as an adverse party can raise an objection and if the existence of such a
certificate is debunked, then the statutory marriage built on it collapses.

How to prove existence of a statutory marriage

A statutory marriage can be proved either by primary or by secondary evidence under the
applicable Section 93 of the Evidence Act. S. 32 of the Marriage Act provides for proof of the
marriage by providing the marriage certificate, a certified true copy thereof or an entry in the
marriage register book. The primary evidence is the original document i.e. marriage certificate
produced for the inspection of the court or the entry in the marriage register book 12. Where the
original is not available such a document can be proved by means of secondary evidence under
S.95 Evidence Act of which a certified the copy will suffice to prove the existence of such a
document under S.95 and 97 Evidence Act. Thus going by these provisions, the Registrar’s
Certificate is an effectual means of proving a valid marriage provided it is genuine.

Also, S.86 Matrimonial Causes Act provides that in proceedings under the Act the Court may
receive as evidence of the facts stated in it a document purporting to be either the original or a
certified copy of any certificate, entry or record of a birth, death or marriage alleged to have
taken place whether in Nigeria or elsewhere13.
For a certified true copy to be effectual, it must be as exactly as the original. Section 111(1)
Evidence Act provides:
“(1) Every public officer having the custody of a public
document which any person has a right to inspect shall give that
person on demand a copy of it on payment of the legal fees
therefore, together with a certificate written at the foot of such
copy that it is a true copy of such document or part thereof, as the
case may be, and such certificate shall be dated and subscribed by
such officer with his name and his official title, and shall be sealed,
whenever such officer is authorized by law to make use of a seal,
and such copies so certified shall be called certified copies.
(2) Any officer who, by the ordinary course of official duty, is
authorized to deliver such copies, shall be deemed to have the
custody of such documents within the meaning of this section.”
12
See s.94 Evidence Act.
13
Akparanta v. Akparanta 2 ECSLR 779. See also Idigbe J. in Akuwudike v. Akuwudike 7
ENLR 5.
Once it is established that they emanate from proper authority and conform to the statutory
requirements, such certified copies may be used to prove the contents of the public document.
The Court shall presume every document purporting to be certified copy of a certificate which is
admissible as evidence of the existence of a marriage as genuine, provided that such document is
substantially in the form and purports to be executed in the manner directed by law. The
common form of Marriage Certificate is in a prescribed printed form wherein parties to the
marriage fill their names and other particulars in their respective handwritings, not typed.

Nullity of marriage
S.34 Matrimonial Causes Act provides that subject to the following provision of this part of this
Act, a petition under this Act for nullity of marriage may be based on the ground that the
marriage is void, or on the ground that the marriage is voidable at the suit of the petitioner.
S.38 (1) A decree of nullity under this Act of a voidable marriage shall annul the marriage from
and including the date on which the decree becomes absolute.
S.3 (1) of the Matrimonial Causes Act states that a marriage will be void in the following
circumstances:
“(1) subject to the provisions of this section, a marriage that takes place after the
commencement of this Act is void in any of the following cases but not otherwise, that is
to say, where –
(a) either of the parties is, at the time of the marriage, lawfully married to some
other person;
(b) …

Furthermore, s. 35 of the Marriage Act provides that a person married under the Act shall be
incapable of contracting a valid marriage under customary law, and therefore such later
customary marriage will be void.
Dissolution of Marriage

The laws regulating the three modes of contracting Marriage in Nigeria provide avenues through
which the relationships could be terminated. Marriage has been described as contract between
man and woman. Like any other contract, there are principles binding the contract of marriage.
Marriage creates status and there are consequences and incidental issues arising from the
contract .In Nigeria, the laws regulating the institution of marriage and incidences are contained
in the Marriage Act14 and Matrimonial Causes Act.15 Globally, there has been an increasing rate
of joining together of couples in marriage with admiration and great expectation of looking into
the future of a presumption of keeping to each other in perpetuity. There is a possibility of this
seemingly unending relationship, nevertheless some unions have experienced alarming increase
in divorce rates with strained emotions and bitterness. Virtually on daily basis there are news
reports and social media posts that are rife with notifications and stories of divorce involving
celebrities, notable sportsmen and women16. Paradoxically while divorce is the legal ending of a
marriage which evidenced a non-working arrangement and sanctioned by a court, the separated
couple may choose to remarry in the future. Unarguably, divorce rates in Nigeria, though not as
high as European societies, are on the increase. The Prevalence and Patterns of Marital
Dissolution in Nigeria cut across all forms of marriage although divorce and separation in its
actual prevalence were not well documented in Nigeria, studies indicated that the rate of divorce
in some states was higher than the prevailing rates in some European countries.

In the South-South, it was reported that 30 per cent of married women among the Yako, a tribe in
Cross River State, were divorced. Another researcher also observed that the divorce rate, per 100
extant marriages, was between 3.4 and 4.5 per cent among the Yoruba of South-West Nigeria.
The 2006 National Population Census data recorded that 704,000 Nigerians were divorced, with
230,000 males and 474,000 females. Also, 2018 data from Nigeria’s Demographic and Health
Survey revealed that women were more likely than men to be divorced or separated, as three per
cent of women were either divorced or separated as against one per cent of men. The data also
revealed that 70 per cent of women and 57 per cent of men were either married or living with a
partner. In 2019, Aljazeera pegged Kano State as home to the largest number of divorcees in

14
Marriage Act 1914 Cap M6 of the Laws of the Federation of Nigeria 2004 as amended
15
Matrimonial Causes Act 1970 Cap M7 of the Laws of Federation of Nigeria 2004.

16
See Sharon Osaji, Marriage experts worry over rising divorce among young couples in The Punch, 23rd
April 2023
Nigeria. However, a report by Oklahoma State University noted that psychological divorce,
which is the process of mental separation and the development of independence, was considered
the “true” separation from a marital partner, as the divorcee at this point, learned to be self-
supportive and dependent. This implied that some couples were living separate lives, yet being
married and sometimes living with each other. More worrisome is the divorce increase among
young marriages with ‘irreconcilable differences’ masking the untold story surrounding the
reason or reasons for the dissolution of the union.

In March 2022, the survey conducted from the Igando Customary Court in Lagos State, decried
the high rate of divorce among young couples. This is attributed to the reason of the inability of
couples to properly study each other and the recklessness of not waiting to discover if the love
was genuine before getting married. This, had led to incompatible issues as a ground for
divorce. Lack of commitment has remained a major factor that has seen divorce rise in recent
times. It revealed that the average length of marriage was 12.2 years and lack of commitment,
infidelity and family were reasons for divorce. According to a relationship expert and marriage
counsellor, Atimes, how couples handle conflict and resolve issues is the most important
predictor of whether or not a marriage will survive. Another factor responsible for crashing
marriages was constant and unresolved conflict. Also, constant communication, patience and
perseverance are the most important factors that help to resolve conflicts in the home. Persistent
sweeping things under the carpet or bottling things up was not the best option for a successful
home. It needs to be stressed that the manner of communication should be with love,
understanding and mutual respect. Lack of patience and perseverance has led to a rise in divorce
cases. Most couples are not ready to persevere with one another and marriage takes a lot of these
with endurance. More often the two people that make a union are brought up by different
parents; they have different views on life and in some cases different religions, so if the other
party is exhibiting traits you do not like, you can’t expect that person to change overnight or
expect to start seeing changes immediately when it took that individual over 20 to 30 years to
become who he or she is. They must be patient with each other and endure with each other as
things get better. Where there is no endurance and understanding, issues that ordinarily are not
supposed to cause problems will blow up and become very huge. Infidelity and domestic
violence have also contributed to the rise in divorce rates. It has been noted that the younger
generation, mostly men, resorted to marriage in a bid to satisfy their sexual urges, while
civilisation had contributed to the increase in divorce with African women adopting feminism
and gender equality.

Overview of Reasons and Ground for Divorce

There are several reasons why a party to a marriage may seek for divorce in Nigeria, but
regardless of the reasons to end a marriage between parties, the law states that the sole ground
for divorce in Nigeria is that the "marriage has broken down irretrievably". The Matrimonial
Causes Act 1970 and the Matrimonial Causes Rules 1983 are the primary laws that govern
matrimonial causes such as divorce, annulment, legal separation, etc of marriage in Nigeria. The
Act provides that the court with jurisdiction to hear and determine matrimonial causes is the
High Court of any State of the Federation. It is trite to state that for a marriage to undergo
divorce proceedings in court for whatever reason, such marriage must be a statutory marriage
legally conducted and evidenced by a valid Marriage Certificate. A statutory marriage is one
celebrated under the Act and it confers jurisdiction on the State High Court to determine the
petition for dissolution of marriage. The action for dissolution of marriage is ordinarily instituted
by Petition filed by the person bringing the action called the Petitioner and the party who it is
brought against is called the Respondent. The Respondent replies to the filed petition by a way of
Answer or Cross-Petition.

The law stipulates that a marriage under two (2) years cannot be dissolved; this is called the two-
year rule. It is provided for under Section 30 of the Act, which states “subject to this section
proceeding for a decree of dissolution of marriage shall not be instituted within two years after
the date of the marriage except by the leave of court”. Although to every rule there must be an
exception. Consequently, in exceptional cases, a marriage under 2 years can be dissolved where
the petitioner bringing the action for divorce can prove that exceptional hardship or that the case
is one that involves exceptional depravity, which will be caused if the marriage is not dissolved,
as it is provided for under Section 30 (3) of the Act. The court in determining the application for
leave to institute proceedings of dissolution of the marriage under two years will consider the
interest of any children of the marriage and question whether there would be any probability of a
reconciliation between the parties before the expiration of the period of two years after the date
of marriage. It would be trite to state that before the court dissolves a marriage, the court has the
duty to consider the possibility of parties reconciling as provided under the Section 11 of the Act.
So before a court in Nigeria dissolves a marital union, it must be satisfied that there is no
possibility for parties to reconcile. Sometimes the court may refer the parties to mediation for the
sole purpose of possible reconciliation. But where after exploring the possibilities for
reconciliation and the parties failed, the court will have no choice but to dissolve the marriage.

Particulars of Ground for Dissolution of Marriage

The Act under Section 15 to 16 states the ground for dissolution of marriage and the particulars
of fact upon which the grounds for dissolution of marriage can arise. The sole ground for
instituting an action for dissolution of marriage in Nigeria is that the marriage has broken down
irretrievably. What this means is that the reason for the petition is so severe that the marriage
cannot be revived. In the case of Ekrebe v. Ekrebe,17 the court held that, the appellant cannot be
heard since the phrase “the marriage has broken down irretrievably” as required by Section
15(1) was not included in the petition even though the petition itself contained the words
“cruelty, desertion and adultery”. The court held that these are only part of relevant facts to be
considered and not the ground for dissolution. Furthermore in the case of Ezirim v.
Ezirim,18Nnaemaka Agu J. C who delivered the unanimous opinion of the court observed the:

“It is necessary to bear in mind the fact that although the Act created only one ground of
divorce, to wit; that the marriage has irretrievably broken down; yet that the facts which
may lead to the marriage breaking down irretrievably are categorized under sub-
sections (a) to (h) of section 15(2). Only those facts can suffice to file a petition for
divorce. In other words, a court hearing a petition for divorce ought not to hold that the
marriage has irretrievably broken down unless the petitioner or cross-petitioner, as the
case may be satisfies the court on one or more of the … facts”.

The argument therefore that there are many grounds upon which a statutory marriage can be
dissolved is based on the marginal note to the section 15 which reads “grounds for dissolution of

17
(1999) 3NWLR, 514, see also Labode v. Labode (1972) N.M.L.R., 195 at P. 197
18
Suit N0FCA/L/56/78 (unreported February 6, 1981, court of Appeal, Lagos Division
marriage” has failed the test of reason in view of the clear words of section 15(1) which used the
word “ground”. It is trite law that the clear words of a statute prevail over the marginal note. 19

The Particulars

It is further stated that for the court to hear a petition for the dissolution of marriage, the
petitioner must satisfy the court of at least one or more of the facts stated below:

1. That the respondent has willingly and persistently refused to consummate the marriage.
For this fact to be pleaded, the petitioner must prove that the respondent has failed to
have sexual intercourse, but where it is proved that sex occurred even once, the marriage
will be deemed consummated and therefore the petitioner cannot rely on this ground for
divorce.
2. That since the marriage the respondent has committed adultery and the petitioner finds it
intolerable to live with the respondent. For this fact to hold in court, the petitioner must
prove that not only does the other party commit adultery but he/she finds it unbearable to
live with such infidelity.
3. That since the marriage the respondent has behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent.
4. That the respondent has deserted the petitioner for a continuous period of at least one
year immediately preceding the presentation of the petition. The desertion means that the
respondent has abandoned the matrimonial home without justification.
5. That the parties to the marriage have lived apart for a continuous period of at least 2 years
immediately preceding the presentation of the petition and that the Respondent does not
object to the decree of dissolution being granted.
6. That the parties to the marriage have lived apart for a continuous period of at least three
years immediately preceding the presentation of the petition.
7. That the other party to the marriage has for a period not less than one year failed to
comply with a decree of restitution of conjugal right made under the Matrimonial Causes
Act.

19
A. G. v. Prince Ernest (1957) A .C, 436
 8. That the other party to the marriage has been absent from the petitioner for such time and
in such circumstances has to provide reasonable grounds for presuming that he/ she is
dead.

Case Studies on Ground for Divorce

Going from the foregoing analysis, the annulment of a marriage is a way in which a marriage
can be dissolved. Section 30(1) and (2) of the Matrimonial Causes Act provides that except
where divorce proceedings are based on the facts of willful and persistent refusal to consummate,
adultery, commission of rape, sodomy or bestiality, no proceedings for divorce may be instituted
within 2 years of a marriage without leave of court. Section 30(3) of section 30 prescribes the
circumstances in which the court may grant leave as follows before the expiration of the 2yrs
above, exceptional hardship, exceptional depravity on the part of the other party to the marriage.
The law stipulates that either party to a marriage may petition for divorce upon the ground that
the marriage has broken down irretrievably. The irretrievable breakdown of marriage is the
sole ground for divorce. It follows that a petition for divorce which fails to work for the
dissolution of the marriage on the ground that it has broken down irretrievable may not succeed.
The petitioner must provide facts the proof of which will enable the court to arrive at the
conclusion that a breakdown of marriage has occurred. A court cannot conclude that a marriage
has broken down and grant a decree of divorce unless one of these facts has been established.

In Ezrim v Ezirim20 the Court of Appeal, per NnaemakaAgu, J.SC observed that; It is necessary
to bear in mind the fact that although the Act (Matrimonial Causes Act ) created only one ground
for divorce, to with that the marriage has irretrievably broken down (see Section 15(1) of the Act
), yet that the facts which may lead to the marriage breaking down irretrievably are categorised
under sub-section (a) to (h) of Section 15 (2). Only those facts can suffice to found a petition for
divorce. Section 15(2) then stipulates eight facts of proof each of which will enable the court to
the conclusion that a breakdown of marriage has occurred.

1. Willful and Persistent Refusal to Consummate the Marriage

20
Suit No FCA/L/56/78(unreported) February 6, 1981,
Section 15(2) (a) of the Matrimonial Causes Act of 1970 provides that the proof of willful and
persistent refusal of a spouse to consummate the marriage will have a court hearing a divorce
petition to decide that the marriage has broken down irretrievably. The application of the law
depends on the interpretation of the phrase, “willful and persistent refusal”. It has been decided
that “persistent” in this context is a word which implies continuity and seems to be somewhat
analogous to the word “repeatedly” “willful” means in the context, the doing of something as a
matter of conscious will. This was established in the case of Hardy v Hardy21.
In order to establish this fact there must have been a number of requests direct or implied and the
lack of an opportunity to comply with such request is not necessarily the same as a refusal.
Horton v Horton22. It must be shown that the refusal was conscious, deliberate and continuous
after repeated efforts by the petitioner aimed at consummation.

2. Adultery and Intolerability

By Section 15 (2) (b) of the Matrimonial Causes Act 1970, a court will come to the conclusion
that a marriage has broken down irrevocably where, since the marriage the respondent has
committed adultery and the petitioner finds it intolerable to live with the respondent. For the
petitioner to succeed on the ground of adultery under the Matrimonial Causes Act, he/she has to
prove not merely the commission of adultery by the respondent but also that the petitioner finds
it intolerable to live with the respondent. In addition to these facts, it has to be established that
these facts occurred after the celebration of the marriage.

a. Proof of Adultery
Adultery may be defined as the voluntary sexual intercourse between a spouse and a third party
of the opposite sex not being the husband or wife during the subsistence of the marriage. The
element of freewill is fundamental to the concept of adultery. Once a spouse can establish an act
of intercourse between the other spouse and a third party, the burden of proof shifts to the
respondent to show that the sexual intercourse lacked his or her real consent. The court held so in
the case of Redpath v Redpath23.

21
(1964) 6FLR 109
22
(1947) 2 All ER 871 at 874
23
(1950) 1 All ER 600.
 i. Nature of Evidence
Because of its very nature, it is rare to obtain clear evidence of the commission of adultery.
Hence, adultery is usually inferred from the surrounding circumstances such as undue
familiarity, suspicious circumstances, conviction for rape, etc. In Adeyemi v Adeyemi24, the
husband at night visited his wife who was living apart from him. His wife’s bedroom was in
darkness. As a result of his banging of the door, it opened and he found both the respondent and
co-respondent inside. The wife was sitting on a bed with only a wrapper thrown carelessly
around her body and the co-respondent’s shirt was not properly tucked into his trousers. It was
found that the circumstances in which the parties were found pointed conclusively to the
commission of adultery.

ii. The Birth of a Child

The birth of a child for a man by a woman other than his legal wife will give rise to the inference
that the man has committed adultery. The birth of a child by a wife during the marriage when the
husband has no access constitutes evidence of the commission of adultery. The birth of a child
during the subsistence of a valid marriage between the spouses within 280days after its
dissolution is conclusive evidence of the child`s legitimacy. A husband may prove adultery by a
conclusive evidence of non-access to the wife during the period the child could have been
conceived. A spouse may not be compelled to give such evidence if it would show that the child
was illegitimate.

iii. Venereal Disease

Where a spouse suffers from venereal disease which has not been contracted from the other
spouse, a presumption of adultery is raised although such presumption may be rebutted by proof
that the disease was contracted other than by adultery as it was decided in Butler v Butler25 . The
24
(1969) 2 Act NLR18
25
48 So. 2d 318 (1950) 2 Div. 278.
appeal was decided by the Supreme Court of Alabama On October 26, 1950; Sam Butler filed
suit for divorce from Marie Butler on the ground of voluntary abandonment. Marie Butler denied
the abandonment and in a cross-bill alleged adultery on the part of Sam Butler and sought a
divorce from him. She also prayed for the custody of her three minor children and an allowance
for their support and maintenance, alleging Sam Butler to be their father. She also prayed for an
allowance for counsel fees. Sam Butler filed an answer to the cross-bill denying its allegations,
including the allegation that he was the father of the three minor children. The case was tried
orally before the court with the result that a decree was entered by the court refusing to grant the
complainant a divorce and dismissing his bill and also refusing to grant the cross-complainant a
divorce and dismissing her cross-bill.

The facts of the case were that Sam Butler and Marie Butler were married in 1915. The evidence
showed that in about 1924 Marie Butler voluntarily left Sam Butler and never lived with him
again in his home with tendencies of the evidence showing that he committed adultery, living in
the same house with one woman and having intercourse with others. It is settled that in a suit for
divorce when both parties prove a ground for divorce the court will not grant a divorce to either.
It was claimed by Marie Butler that she had had twelve children by Sam Butler. She testified that
six were dead and that her three youngest living children were by him. She conceded that she had
not lived with him in his home since she left him in 1924 but testified that he had had access to
her in her home during this period. The three minors who live with their mother were born
respectively in 1931, 1933 and 1936. Sam Butler denied that he had had intercourse with her
since she left him and that he is the father of the three minor children. The proof shows that
during this period she had made no claim on him with reference to the minor children and had
lived apart from him of her own free will and accord. The evidence further showed that during
this period he lived openly in his own house with another woman.

But even if the foregoing sections of the code cited are not applicable to this case, this court has
held that whenever the welfare of the children is concerned and the jurisdiction of the court is
invoked, the court has an inherent power to enter a decree for their custody and support. Scott v.
Scott, 247 Ala. 598, 25 So. 2d 673. The jurisdiction of the court was invoked in this case by the
allegation that "the respondent, their mother, is a proper person to have custody and control of
said minor children and she desires custody of said children." An allowance to the mother for the
support and maintenance of the minor children is not necessarily obligatory but rests in the sound
discretion of the court and is to be determined from all the facts and circumstances in the case.
When all the facts and circumstances in this case are considered, including the fact that for 26
years Marie Butler has lived separate and apart from Sam Butler of her own free will and accord
and during this time, until this suit was instituted, has made no claim on him for the support of
the children, we think them sufficient to justify the court in refusing to make an allowance for the
support of the children.

iv. Cohabitation
Adultery may be presumed from the general co-habitation of the respondent and co-respondent
in the same house as husband and wife or if they spent a night together in a hotel. Bigamy is a
prima facie evidence of adultery. Evoroja v Evoroja 26.

v. Confessions and Admissions

Confessions and admissions may prove evidence of adultery. Confessions are however, regarded
with suspicion and caution by the courts particularly if the confessing party desires to obtain a
divorce. The courts require that confession be corroborated. This may be deduced for example
from a letter. Alabi v Alabi 27
vi. Blood Test and DNA
A court does not have the power to compel a party to submit to a blood test but it may draw
appropriate conclusion from a refusal.

b. Intolerability
Adultery alone does not establish irretrievable breakdown of a marriage. Under the act
intolerability of the alleged adultery must be proved-- Section 15(2) (c)28.

26
(1961) WNLR 6 where the respondent left the matrimonial ... See (Thurlow v Thurlow 1975) 3 WLR 855. In Ash v
Ash (1972) 2 WLR 347,
27
(2007) 9 NWLR (Pt 1039), pp 297; Megwalu v Megwalu (1994) 7 NWLR (Pt 359) pp 718
28
Cleary v Cleary (1974) 1 All ER 498,; Roper v Roper (1972) 1WLR 1314
In a decree for Divorce where Adultery is alleged with a specific person, the co-respondent who
is that specified person must be made a party to that proceeding unless the rules of court direct
otherwise. See Section 32(1) MCA.

3. Respondent’s Grave and Unbearable Conduct

A court may find that a marriage has broken down irrevocably if since the marriage the
respondent has behaved in such a way that the petitioner cannot reasonably be expected to live
with the respondent. The conduct of the respondent in question must have occurred since the
celebration of the marriage. The conduct must also have some reference to the marriage. The
behaviour in question must be sufficiently framed such as in the following situations. S 15(2) (C)
MCA. See Pheasant v Pheasant 29.

a. Rape, Sodomy or Bestiality

If since the celebration of the marriage the respondent has committed rape, sodomy or bestiality,
conduct of this nature is grave and would enable the court to conclude that the petitioner cannot
reasonably be expected to live with the respondent. See Sections 16(1)(a), 7(1)(a), 87(2), 32(2),
32(3) MCA.

b. Habitual Drunkenness or Intoxication

The petitioner cannot be expected to live with the respondent where since the marriage the
respondent has for a period of at least two years been a habitual drunkard or habitually been
intoxicated by reason of taking or using, to excess, any sedative, narcotic or stimulating drug or
preparation.

4. Frequent Conviction and Leaving the Spouse without Support

Section 15(2) (c) of the Matrimonial Causes Act 1970 comes into play where since the marriage,
the respondent has within a period not exceeding 5 years suffered frequent convictions for crime
and has been sentenced on the aggregate to not less than three years imprisonment. Besides, he

29
(1972) Fam 202
must have habitually left the partner without a reasonable means of support. The convictions and
sentences must have occurred after the marriage.

5. Imprisonment
Where in the marriage, the respondent, has been in prison for a period of not less than three years
after conviction, Section 16 will operate. For an offence punishable by death or imprisonment for
life or for a period of five years or more, and he/she is still in prison at the date of the petition,
Section 16 will be applied. Symes v Symes 30.

6. Attempt to Murder and Assault

Where since the marriage and within one year immediately preceding the date of petition, the
respondent has been convicted of an attempt to murder or unlawfully kill the petitioner, Section
16 will apply. Where also he has committed the offence concerned with the intentional infliction
of grievous bodily harm on the petitioner involving maiming, disfigurement, which seriously
interfered with health or comfort of the petitioner, section 16 would be put into effect.

7. Habitual and Woeful Failure to Support

Where the respondent has habitually and woefully failed during the period of two years
immediately preceding the date of petition, to pay maintenance to the petitioner under a court
order under a separation agreement, Section 16 will be applied. The order must be one made by a
court in Nigeria. The failure of the respondent to pay maintenance for the petitioner must also be
willful which connotes a deliberate act or decision on the part of the respondent.

8. Insanity
Insanity in one of the situations envisaged under Section 15(2)(c) of the Matrimonial Causes Act,
1970. This happens if the respondent at the time of the petition is of unsound mind and unlikely
recover. In addition, it must be proved that since years immediately preceding the date of the
petition, he has been confined for a period or periods of not less than five years in one or more
institutions in or outside Nigeria where persons of unsound minds are confined.

30
(1927) 19FLR 51
Section 16(1) (g) of the Matrimonial Causes Act of 1970 is on this issue. A marriage will not be
dissolved under this provision unless the court is satisfied that at the commencement of the
hearing of the petition, the respondent was still confined in such an institution and cannot
reasonably be expected to live with such conduct of the respondent that causes danger to life,
limb or health of the petitioner or reasonable apprehension or such danger. Such conduct may
include physical assaults, humiliating treatment, nagging, the use of juju or charms,
ungovernable temper, intemperate drinking and gambling.

9. Desertion
A marriage will be regarded as having broken down irretrievably where the respondent has
deserted the petitioner for a continuous period of at least one year immediately preceding the
presentation of the petition. Desertion means the separation from the other which brings co-
habitation permanently to an end without the consent of the other spouse. To constitute desertion
four elements must be present at the same time.
a. De facto separation of the parties
b. Animus deserendi
c. Lack of just cause for the withdrawal from co-habitation.
d. The absence of the consent of the deserted spouse.

Defacto Separation
This implies bringing co-habitation to an end by severing marital obligations. The most obvious
case occurs when one’s spouse physically departs from the home. Rosanwo v Rosanwo31. In
another instance, a spouse who does not have an alternative place to go may continue to live
there but repudiates all marital obligations. The desertion is just live physical departure. There
may be desertion where the parties continue to live under the same roof.

Animus Deserendi
There must be an intention to withdraw from co-habitation permanently. When a spouse
voluntarily abandons the home, there is a presumption that he intended to desert animus

31
(1961) WNLR 297; Perry v Perry ( 1952) 1 All ER 1076.
deserendi. There is no such intention where a spouse is temporarily absent from the other on
business or on holidays or when there is mutual consent32.

The Absence of the Consent of the Deserted Spouse

A spouse who leaves the matrimonial home without the consent of the other spouse may be in
desertion. Therefore, no desertion if the petitioner consented to the desertion. The consent may
be express or implied. The consent must also be voluntarily 33. Anyone or more periods not
exceeding six months during which the parties resumed living with each other in the same
household are not regarded as a break in the continuity of the period.

10. Separation and Respondents’ Consent to Dissolution

A marriage will be regarded as having broken down irretrievably 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 a decree being granted. See Section 15(2) [(e) of
the Matrimonial Causes Act, of 1970.

11. Living Apart for Two Years

Under the Act, mere physical separation does not constitute living apart. There must also be
termination of consortium. There must be a clear intention on the part of one or both of the
spouses not to return to the other and the treatment of the marriage having come to an end. The
parties to a marriage will be treated as living apart unless they are living with each other 34.

Statutory Provision for Counselling Before Divorce

A petition for dissolution of marriage will not be entertained if the parties have not undergone
mandatory counseling before the filling of the petition.

Section 11 and 12 of the MCA provides:

32
Agu v Agu Suit No E/ID/1966 (unreported, Oputa J. Enugu High Court 18 July 1966; Sowande v Sowande (1969)
1All NLR 482.
33
Ikpi V Ikpi(1957) WNLR 59; Beevan v Beevan (1955) 1WLR 1142
34
Goodluck v Goodluck (1979) 7-9 CCHCJ 145
“11(1) It shall be the duty of the court in which a matrimonial cause has been instituted to give
consideration, from time to time, to the possibility of a reconciliation of the par ties to the
marriage (unless the proceedings are of such a nature that it would not be appropriate to do so),
and if at any time it appears to the judge constituting the court, either from the nature of the
case, the evidence in the proceedings or the attitude of those par‐ ties, or of either of them, or
of counsel, that there is a reasonable possibility of such a reconciliation, the judge may do all
or any of the following, that is to say, he may‐ (a) adjourn the proceedings to afford those
parties an opportunity of becoming reconciled or to enable anything to be done in accordance
with either of the next two succeeding paragraphs; (b) with the consent of those parties,
interview them in chambers, with or without counsel, as the judge thinks proper, with a view to
effecting a reconciliation; (c) nominate a person with experience or training in marriage
conciliation, or in special circumstances, some other suitable person, to Endeavour with the
consent of the parties, to effect a reconciliation. (2) If, not less than fourteen days after an
adjournment under subsection (1) of this section has taken place, either of the parties to the
marriage requests that the hearing be proceeded with, the judge shall resume the hearing, or
the proceedings may be dealt with by another judge, as the case may require, as soon as
practicable.

12. Hearing when reconciliation fails Where a judge has acted as conciliator under section 11
(1) (b) of this Act but the at‐ tempt to effect a reconciliation has failed, the judge shall not,
except at the request of the parties to the proceedings, continue to hear the proceedings, or
determine the proceedings; and, in the absence of such a request, the proceedings shall be dealt
with by another Judge”

Bars to The Granting Of A Decree Of Dissolution Of Divorce

A petitioner who has proved to the satisfaction of the court that the marriage has broken down
irretrievably is entitled to a decree of divorce. This decree will be denied if absolute or
discretionary bars apply to the case. The court is bound to dismiss the petition where there is
proof of an absolute bar. In the case of discretionary bars, the court has discretion on whether to
dissolve the marriage if one of the defences can be established
Absolute Bars
1. Condonation
2. Connivance
3. Collusion

Discretionary Bars
1. Petitioner’s, Adultery
2. Petitioner’s desertion
3. Conduct conducing to the commission of a matrimonial defence.

The action for dissolution of a statutory marriage can be brought under any one or more of the
facts stated above before the court can make a decree for dissolution of marriage. The decrees
the High Court of the State can make are two orders called Decree Nisi and Decree Absolute.
This means that the Decree Nisi is made first and this order gives the opportunity of the other
party to appeal the decision of the court and the second order of Decree absolute is made 3
months after the first decree as provided under section 58 of the Act. The Decree Nisi is made
absolute after 3 months where no appeal is made and there is no right to appeal the decision of
the court after it has been made absolute. The marriage is completely dissolved where the order
of decree absolute is made. The effect of dissolving a statutory marriage is that a party to the
marriage can marry again as if the marriage had been dissolved by death.

Ancillary Reliefs

The Part IV of the Matrimonial Cause Act, 1970 deals with the making of orders for
maintenance, custody and settlements.35 The High Court is conferred with power to make various
orders in respect of the parties to the marriage including the children of the marriage. Section 69
of MCA, 1970, provides extensively for the parties to whom these ancillary reliefs may be made.
Parties to the marriage are within the ambit of the section 69, even if the purported marriage is
void, but the Act does not provide for the marriage entered into according to Muslim ties or other

35
S. 69 MCA,1970
customary forms of marriage. Parties to a valid or voidable contracted under the Act are also
covered by the provision of section 69, MCA, 1970.36

The reliefs available to parties of a marriage include the following;

i. maintenance at common law

ii. maintenance under the MCA,1970
iii. Maintenance pending disposal of proceeding
iv. Custody, guardianship, welfare advancement or education of children of the marriage.
v. Settlement of property

Settlement of Property

In matrimonial proceedings, as a result of the abandonment of fault-based divorce, 37the court

may order the settlement of properties owned by the parties as it considers just and equitable in
the circumstances for the benefits of both parties to the marriage or one of them and the children
of marriage.38 There is a revolution in the laws which regulate the economic consequences of
marriage breakdown. As a consequence of liberalisation of the grounds of divorce, the attention
of lawyers has shifted from the process by which divorce is obtained and interest has now shifted
particularly to issues, which are ancillary to dissolution proceedings, namely issues of property,
finance and child custody. In matrimonial proceedings, the court may require the parties to the
marriage or one of them to make settlements of property owned in possession of reversion as the
court considers just and equitable in the circumstances, for the benefit of both parties to the
marriage or one of them and the children of the marriage39.

Concept and Determination of Matrimonial Property

The modern concept of matrimonial property is premised on the rationale for the legal
recognition of domestic effort as a contribution towards the acquisition of the spouses’ assets.

36
Williams v. Williams (1976) 3 CCHCJ, 805

37
It should be noted that prior to the 1970s, divorcing spouses had to prove that the other spouse was at fault, for
instance for being guilty of adultery, abandonment, or cruelty in order a dissolution order.
38
Section 72(1) MCA , 1970
39
Section 72(1) MCA,1970
See Lord’s Simon of Glaisdale, a former president of the family Division of the English High
Court puts the ideal of matrimonial property thus:

Men can only earn their income and accumulate capital by virtue of the division
of labour between themselves and their wives. The wife spends her youth and
early middle age in bearing and rearing children and in tending the home; the
husband is thus freed for his economic activities. Unless the wife plays her part
the husband cannot play his. The cock bird can feather his nest precisely because
he is not required to spend most of his time sitting on it”.

Legal Implication of Joint Ownership of Property in Marriage

The properties that were jointly acquired during the pendency or existence of a marriage do not
necessarily confer joint ownership of same. Quite a lot of times in all the forms of marriages,
when properties are acquired, the title documents are usually made out in the name of the
husband and a lot of times, such a husband may claim the beneficial interest as his own even in
the course of litigation. The scenario above is most often the case, even when the English law
had moved away from the principle of absolute dependence of wives on husbands by giving
them separate personality and independence in the ownership and acquisition of property (in line
with the various international legislations) it has led to an almost complete destruction of the
presumption of advancement whereby equity presumed inter alia that property purchased by a
husband with his money in the name of his wife or their joint names confers a beneficial interest
in the wife unless a contrary intention is displayed. 40Since the property acquired during the
course of a marriage is regarded as the property of both couples, it is possible that upon the
dissolution of marriage, if it is in the interest of the spouse or children of the marriage, the court
may order the advantaged party to move out of the matrimonial home. 41The above position is
operational in England and some other countries, but not in Nigeria. The presumption of law in
Nigeria is that the title both legal and equitable resides in whoever’s name is on the title deed in
matrimony property. In view of most family administration practices in Nigeria, the husband
undertakes capital projects and investment with his income, while the wife may be responsible
for providing food, clothing and other non-income yielding and capital generating

40
Dyer v. Dyer (1788) 2 Cox Eq92 at 93
41
Matrimonial Homes Act, 1983 of England, Hall v. Hall (1971) 1 WLR, 404.
responsibilities (which the husband is by law ordinarily required to do). The lack of the concept
of joint or matrimonial property usually works injustice on the wife on the termination of the
marriage either by divorce or on the death of the husband.

Settlement of Matrimonial Property under Statutory Marriage

Any marriage celebrated under the marriage Act can only be dissolved through judicial process
in the High Court of any state in Nigeria. There are many laws in Nigeria which regulate the
sharing of matrimonial properties and the interesting thing is that, it is usually the woman who
makes application to court for settlement of property because she is usually dependent on the
husband. A lot of times the wife would have made considerable contributions towards the
purchase of what are supposed to be matrimonial properties such as developed properties, but
because of the marriage relationship which she believes is for life, she will not be mindful of
whose name is on the title documents. Under the Matrimonial Causes Act, 1970, the spouse of a
statutory marriage can rely on the provisions of section 72 after divorce to apply for settlement of
property and the court in making the order must do a just and equitable consideration in the
circumstances of the case. In practice, Nigerian judges tend towards making orders for lump sum
or periodical payments in Manakoya’s case in spite of the fact that the husband had landed
properties and investments worth Millions of naira, the court ordered the payment of lump sum
to the wife.42Often times when the court grants the woman proprietary right to property, it is
usually made a conditional grant either with a rider that the interest will be in her life time of the
woman, whilst she has not remarried and the children of the marriage must be of good behaviour
while living in the property.43

The rules of Future Earnings

The British highest court made two new rules: future earning and the other cost of conduct. 44The
future earnings rule will enable the woman who sacrifices career to care for the children and her
home is then entitled to compensation for what she has lost. There has been a question whether
the value of divisible assets on divorce should be taken to include prospective future inheritance,
gift or distribution from discretionary trusts and like funds. In England for instance it was ruled
42
Manakoya v. Manakoya (1999) NWLR(472) 256
43
Suit no.MD/15A/82 (unreported, upper Area Court, Makurdi
44
Adeniyi Olatunbosun, paper on changing dimension of divorce proceedings in the United Kingdom and
Nigeriap.16
that to order financial provision and property adjustment under the Matrimonial Causes Act,
1973, the court must take into consideration a husband’s prospect of becoming entitled to a large
sum of money under a family settlement created by the husband’s grandfather. 45It is not
advisable that future interests should be included in the definition of matrimonial property,
because most times they consist of donations which are distinct from rights earned by way of
matrimonial activity, as such should not be subject to distribution between divorced spouses. In
Nigeria, the presumption of law is that, both the legal title and the equitable right belong to the
person named in the title document, which is mostly the husband, because the usual practice is
that the man undertakes capital projects and investment with his income whilst the wife may be
taking care of the family’s domestic needs with her income and the wife never anticipates future
litigation.

Conclusion

The process for a divorce in Nigeria is a very sensitive one and it is not easy for a marital union
to be declared irretrievably broken down. For a statutory marriage to be dissolved, the court must
be satisfied that the option for settlement has been explored unsuccessfully. If reconciliation
failed, then it is clear that the marriage has broken down irretrievably and then the court will
grant a decree for the dissolution.

45
Calder v. Calder (1979) the times, 29 (June) Court of Appeal.