This is a Masterpiece; WHY YOU CANNOT GET A DIVORCE WITHIN 2 YEARS OF YOUR WEDDING - AYOKUNLE ODEKUNLE
By
virtue of Section 30(1) of the Matrimonial Causes Act, no proceeding for the
dissolution of a marriage may be instituted within two years of the marriage.
Adimeru,
a go-happy, hippy young man based in Lagos met Anire, a Ghana-trained Human
Resources practitioner. They saw one or two times and many things happened in
those one or two times. In one of their encounters, it ‘rained’ and they failed
to protect themselves. While Adimeru FAILED/REFUSED to use an umbrella or
raincoat, Anire failed to wear a ‘cardigan’. She got wet as a result. Trust
Adimeru, his thrusts were trustworthy. He went in hard and she happily received
his showers of blessing. She promised to ‘cum’ for more.
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| Ayokunle Odekunle |
Adimeru’s
parents got to know and they told him he had to marry Anire. “We don’t have children
out of Wedlock in our family. Anyone who tries that will be struck by
Ayelala”, they chorused. So he had no choice but to marry Anire- A girl he
has/had no feelings for.
They
got married at Christ Apostolic Church, Agbala Itura. Instead of marrying
into conjugal bliss, their welcome into hell was formalized. Two un-compatible
persons living together as man and wife? Nothing worked! Adimeru could not bear
waking up to seeing Anire’s face first thing every morning. It was just 4
months into their marriage and it seemed like eternity in hell. He needed an
escape route. He needed a divorce.
He
approached the Law firm of Oga De Law & Sons and instructed them to
commence divorce proceedings against his wife. He told the Law firm that
since he got married in a Church, the marriage is a customary weddings and so,
the matter should be settled at a Customary Court which he reckoned will be
easier
ISSUES
1. What kind of marriage was
contracted between Adimeru and Anire?
2. What are the grounds for
divorce?
3. Can Adimeru and Anire get
divorced as they have been married for just under 2 years?
ISSUE
1
Basically
the laws that govern matrimonial proceedings are the Marriage Act, Matrimonial
Causes Act Cap. M7 Laws of the Federation of Nigeria and Matrimonial Causes
Rules 1983. The Matrimonial Causes Act applies only to monogamous marriages
contracted under the Act or declared to be valid under the Act.
It
is Adimeru’s contention that since he got married in the church, the marriage
doesn’t qualify as a statutory marriage. How true is this?
There
is a difference between a statutory marriage and a church marriage. A church
marriage is NOT NECESSARILY a marriage under the Act. The fact that a marriage
was celebrated in a church does not constitute a marriage under the Act. Such a
marriage must comply with the requirements of the Act to be a statutory
marriage. Simply put, a church marriage without more is a customary marriage.
In
the case of Nwangwa v Ubani [1997] 10 N.W.L.R. pt 526, p. 559, the
Court of Appeal held that the mere celebration of a marriage in a church as was
done in the case does not confer statutory flavour to the marriage. The Court
further stated that in order to convert a customary marriage into a statutory
law marriage the parties must CONSCIOUSLY take steps and adopt the procedure
contained in the marriage Act (A condition is Production of licence from
the Registrar, etc).
There
have been a number of contested cases in Nigerian Courts as to whether
marriages contracted in Church without a Registrar’s licence are null and void. In Obiekwe
V. Obiekwe, a marriage solemnized in the Holy Ghost Roman Catholic Church
Enugu was not declared null and void because the Court found that the couple
did not knowingly and willfully acquiesce in the marriage without the requisite
licence. The Learned Judge made the following remarks:
“A
good deal has been said about “Church marriage” or marriage under Roman
Catholic Church Law”. So far as the law of Nigeria is concerned,
there is only one form to monogamous marriage, and that is marriage under the
Ordinance. Legally a marriage in a Church (of any denomination) is
either a marriage under the Ordinance or it is nothing”
In
another celebrated case, Anyaegbunam V. Anyaegbunam, the
Supreme Court declared where there is a dispute as to whether a Church service
is a service of marriage or a Church blessing of a marriage, the “Certificate
of Marriage” issued by the Church would not be evidence of marriage unless it
can be shown that the required licence of the Registrar of Marriages was
produced and the certificate was in the form prescribed by the Marriage
Act. In this case, the Court ruled in favour of
the husband that the Church ceremony was a mere blessing of marriage, and not a
marriage under the statute.
In
the case of Adimeru and Anire, though they got married in a church,
they took steps to ensure that the marriage is a statutory marriage as they
have the licence from the registrar of marriages. The marriage therefore
is governed by the Marriage Act and can only be dissolved by a State High Court.
NOT a customary court as opined by Adimeru.
ISSUE
2
To
divorce Anire, Adimeru will have to file a petition at Lagos State High Court
(since they are both domiciled in Lagos). For the divorce petition to succeed
Adimeru must prove to the Court that the marriage has been broken down irretrievably. What
does irretrievably mean? The court will consider eight different grounds
under the act highlighted below.
1.
No sex i.e. no consumation of the marriage.
2.
Adultery.
3.
Conduct that is unreasonable (rape, bestiality, habitual drunkard, sodomy,
murderer, incarcerated (in prison), attempted murder of spouse, intent
to or actual commission of serious bodily injury, inability to take care of
spouse).
4.
Abandonment ( must be at least one year prior to the filing of the divorce
petition).
5.
Separation (living apart for a continued period of two years prior to the
filing of the divorce petition)and no objection by the person you
want to divorce from. So, you file for a divorce, the court says how long have
you been apart, you say two years. The court ask your spouse whether he/she
will object to the divorce and he/she says , “no.”
6.
Separation (living apart for a continued period of three years prior
to the filing of the divorce petition).
7.
Failure to comply with a court order regarding marriage or the sexual rights or
privilege of a marriage.
8.
Death/Reason to Believe Spouse is Dead.
Unless
Adimeru can prove that the marriage has broken down and that no force in heaven
or earth can save his marriage to Anire, the Courts will not grant a divorce.
ISSUE
3
So
now that Adimeru wants to get a divorce from Anire even though they have been
married under just 1 year, is it possible? The Laws thinks not. By virtue of
Section 30(1) of the Matrimonial Causes Act, no proceeding for the dissolution
of a marriage may be instituted within two years of the marriage.
There
is however a way out.
Adimeru
who wants to get out of his bad marriage with Anire will have to seek leave of
Court (Special Permission) to file his divorce petition. He must however
prove EXCEPTIONAL circumstances to warrant the Court to grant him leave to file
his petition. In other words, Adimeru has to prove to the Court that there are
exceptional and pressing reasons why he should be allowed to file his petition.
These exceptional circumstances are
1. Exceptional Hardship
2. Exceptional depravity on
the part of the other party
What
are exceptional circumstances? In
Akerele v. Akerele (1962) W.N.L.R. 328, the respondent (Mr. Akerele) was
accused by his wife of inordinate sexual demands when the applicant (Mrs.
Akerele) was in very poor health. He was also charged with adultery and
infecting his wife with venereal disease. The Court held that
this was a case which could conveniently qualify as an ‘exceptional
circumstance’. Leave was granted to the Applicant to file her divorce petition
even though, the the marriage was under 2 years.
In Majekodunmi v. Majekodunmi (1966) A.N.L.R.
324, the couple were married for just under 2 years. The wife however applied
for leave to file a divorce petition on the ground that she became pregnant
for her husband before the marriage and that since the marriage, they have not
lived together and that her request for a matrimonial home was always put off
by her husband who had in fact never supported her and her child. She also
accused her husband of adultery from which he now had another child. Also, her husband had only on
one occasion had sex with her and whenever she begged him for sex, he chased
her away. Leave was granted to the Petitioner.
To
seek leave of Court, the petitioner has to come to Court by way of Motion
Exparte with an Affidavit setting out the particulars of the exceptional
hardship and depravity.
In
the instant case, Adimeru CANNOT file a motion for leave to divorce his wife
since he cannot claim he has suffered exceptional hardship or depravity. He
might have to wait for after the marriage is way over 2 year to file his
divorce petition and by then, he has to prove that the marriage has broken down
irretrievably to warrant its dissolution by the Courts.
LESSON
I
have been inundated by calls from friends who tell me how miserable they are in
their marriages and how they want to find an escape route. Most of the
complainants have being married for just under 2 years. My advice is that
people should take their time before getting married and get to know their
partner well before signing the dotted lines.
Divorce
proceedings are messy as it is a laundry. You see erstwhile happy couples
washing their dirty lingeries in the Court; saying things they should never
say. A classic example is the divorce proceeding between Former Minister for
Health Dr. Timothy Menakaya and his former wife Ann Okuchukwu Menakaya. These
kind of proceedings have everlasting effects on their children and generations
to come ( A good example are the Akerele and Majekodunmi cases I cited).
The
message here is simple: THINK BEFORE GETTING MARRIED!
Ayokunle
Odekunle is
a Legal Practitioner, Chartered Arbitrator, Editor and Social Media
commentator. He is a graduate of the University of Ibadan where he was The Most
outstanding Personality in the school (2011) and the Nigerian Law school,
Lagos. He is presently an Associate in one of the biggest Law firms in the
country as well as an Editor with the most popular Internet Newspaper in
Nigeria. He tweets from @Oddy4real
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