Nigerian cases on Divorce (Rationes decidendi)
Nigerian cases on Divorce
Here are some Nigerian cases with rationes decidendi on divorce. Divorce is the process of legally dissolving a marriage.
Jurisdiction to entertain divorce petition
Koku v. Koku ((1999) 8 NWLR (Pt. 616) 672)
Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the court with jurisdiction to adjudicate on a divorce matter is the court of the domicile of the husband.
Factors to be considered in granting a Divorce
UZOKWE v. UZOKWE (2016) LPELR-40945(CA)
“For the petitioner’s first ground for the petition, the provision of Section 15(2)(c) of the Matrimonial Causes Act come in handy and it states: “15(2) the Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or more of the following facts- (c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. ” To prove this ground, the law makes it incumbent on the petitioner to show: (a) the sickening and detestable behaviour of the respondent; and (b) that the petitioner finds it intolerable to live with the respondent.
See Damulak v. Damilak (supra); Nanna v. Nanna (supra); Ibrahim v. Ibrahim (supra), It was also held in those cases that the test is objective, not a subjective one. I have placed those proved acts of misconduct against the respondent side by side with the above highlighted positions of the law. I am of the considered view that those acts of behaviour are quite upsetting and shocking even as they are grave and weighty given the history of the said marriage. They reek of matrimonial infamous acts which have the capacity to unsettle the mind and life of any reasonable man.
When these fragmented detestable acts are pooled together, they qualify as cruel acts which, though not a ground for divorce are facts that can be used to demonstrate that the petitioner cannot reasonably be expected to live with the respondent. See Damulak v. Damulak (supra); Nanna v. Nanna (supra). In the case of Williams v. Williams (1966) 1 SCNLR 60 at 67 Idigbe, JSC stated: “……. Cruelty is in its nature a cumulative charge and so an accumulation of minor acts of ill treatment causing or likely to cause the suffering spouse to break down under strain constitutes the offence; thus cruelty may consist in the aggregate of the acts alleged in a petition and each paragraph need not allege an independent act of cruelty sufficient in itself to warrant the relief sought.” – Per TOM SHAIBU YAKUBU, JCA
Award of damages in a divorce action
MRS. ROSE NDIBULUM ENWEZOR v. MR. CHRISTOPHER IFEANYI ENWEZOR & ANOR (2012)LCN/5780(CA)
“In divorce proceedings, the party claiming damages must justify his or her claim and also that his or her conduct was not responsible for the damages suffered. In the instant case the appellant’s breed of a child which she claimed does not belong to the respondent, was apparently the reason that triggered the long separation and subsequent marriage under customary law between the respondent and the partly-cited. The appellant does not therefore qualify for damages caused by her own conduct. In fact she was lucky the respondent did not claim for damages against her. The sleeping dog should be let to lie.” – Per HUSSEIN MUKHTAR, JCA
Cruelty as a ground for divorce
BIBILARI v. BIBILARI (2011) LPELR-4443(CA)
“Cruelty is not one of the grounds set out under S. 15 (2) of the Matrimonial Causes Act for divorce; it remains however, one of the old grounds for divorce. A Court can hold that a marriage has broken down irretrievably on the ground that one spouse has been proved to be guilty of cruelty to the other. Damulak v. Damulak (2004) 8 NWLR Pt 874 C.A 151.
What then constitutes cruelty? In considering what constitutes cruelty, the Court should consider the entire evidence adduced even where there is no specific evidence of violence adduced. In Willians v. Willians (1966) 1 All NLR 36 at Pg 41/42 Idiebe JSC said thus: “The court should consider the entire evidence before it, and although not specific instance of actual violence is given in evidence it should be able, on objective appraisal of the evidence before it, to say whether or not the conduct of the respondent is of such a character as is likely to cause, or produce reasonable apprehension of, danger to life, limb or health (bodily or mental) on the part of the petitioner.”
Cruelty is a conduct which is grave. When there is injury or a reasonable apprehension of injury whether physical or mental matted out to a partner, that is sufficient to be described as a behaviour unacceptable in a marriage. Nanna v. Nanna (2006) 3 NWLR Pt 966, 1 C.A. The accumulation of minor acts of ill-treatment causing or likely to cause a spouse to breakdown under strain certainly constitutes cruelty. Like in all Civil Causes, the burden of proof rest on the Petitioner.
Therefore the test is whether the Respondents conduct will in the opinion of a reasonable man justify the Petitioner living apart. Lord Pearce in Gollina v. Gollina (1963) 2 All ER 966 reflected the concept when he said:- “It is impossible to give comprehensive definition of cruelly, but when reprehensible conduct or departure from the normal standard of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.” The learned trial Judge had the privilege to see and hear the witnesses and made his findings.
Where there is sufficient evidence in support of such findings and there is no substantial error apparent such as violation of principle of law. The attitude of the Appellant Court is not to interfere. Ezeonwu v. Onyech (1996) 3 NWLR Pt. 438 499 SC. The Appellant did not establish in evidence any conduct or act of the Respondent that constitutes cruelty. The evidence must show accumulation of acts of ill treatment causing or likely to cause the Appellant to breakdown under strain; infact one grave act will suffice.” – Per REGINA OBIAGELI NWODO, JCA
Principles guiding dissolution of marriage under Islamic law
Usman v. Usman (2003) 11 NWLR (Pt. 830) 109 – [Court of Appeal]
The practice of divestiture or self-redemption (“khul’u”) is one of the ways of dissolving a marriage conducted in accordance with the Sharia principles. Its peculiar nature is that it is initiated by the wife rather than by the husband. It allows that if a wife is unhappy in her marriage and the relationship between her and her husband is so strained that a harmonious union between them is impracticable, due to no fault of her husband, she may seek a divorce from him.
In that case, she may, as consideration for the divorce, surrender the dowry and, where necessary, other marital gifts to herhusband to compensate him for his material and moral losses, whilst the husband may, if he likes, waive his right of compensation and simply agree to divorce her in compliance with her request. Once “Khul’u” occurs, it becomes an irrevocable form of divorce.
Joinder of parties in divorce proceedings
MRS. JOSEPHINE A. USHIE VS ENGINEER GODWIN A. USHIE. (2008) Legalpedia (CA) 11112
“The issue of joinder of parties in divorce petitions is not decided by the reliefs claimed. See Section 32(1) Matrimonial Causes Act but rather it is decided by what led to the Divorce Petition.
The only exceptions where the joinder cannot be made are:
1. where the alleged adulterer is dead
2. where the alleged adulterer is under 14 years of age
3. an infant or young person under the age of 21 years with whom incest is committed by either of the parties to the petition.”
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