DISSOLUTION OF CIVIL UNION & PARTNERSHIP
This is an aspect of law that is profusely emotional. It requires so much objectivity, clear headedness and understanding to resolve the ensuing differences among couples whilst keeping the maintenance of the children (if any) in mind.
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.
The law is clear on the grounds for divorce in Nigeria, the first and most important thing is that the marriage must be at least 2 years old, if it is not, and you would like to get a divorce, you will have to go through another route called ‘annulment’ (annulment will be dealt with in a separate article). If it is over 2 years, then a divorce can be obtained. There is technically only one ground for a divorce – irretrievable breakdown of the marriage. This can be proved through one of the below:
- Your spouse has wilfully and persistently refused to consummate the marriage- this basically is when one party has refused the other party’s sexual advances since the marriage ceremony, and as a result they have not had sex as man and wife.
- Your spouse has committed adultery and you find it intolerable to live with him/her
• Your spouse has behaved in such a way that you can’t reasonably be expected to live with him/her (this includes acts of rape, sodomy, habitual drunkenness/intoxication, frequent crime convictions, refusal to pay maintenance etc)
- Your spouse has deserted you for a continuous period of at least one year immediately preceding your case for divorce – desertion in this case is basically when the other party has abandoned the marriage.
- You have both lived apart for a continuous period of at least two years and you both want a divorce – agreement of both parties is necessary for this ground to be used.
- You have both lived apart for a continuous period of at least three years immediately preceding your case for divorce
- Your spouse has for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made by a court – this is when one party has gone to court previously to seek an order for the other party to accede to the party’s request for his/her marital rights pertaining to sex.
- Your spouse has been absent long enough to be legally presumed dead (7 years) – under the Evidence Act, when someone is missing for up to 7 years, he/she can legally be presumed dead under the law. . After the petitioner has proven any of the facts above and the court is satisfied that the marriage has truly broken down irretrievably, the court would make an order dissolving the marriage.
There are two orders that a court will make in dissolving a marriage. The first order is called a “Decree Nisi” while the second order is called “Decree Absolute”. The Decree Nisi is made first and, after three months, a petitioner can apply for the decree nisi to be made absolute. A decree nisi gives a party the opportunity to appeal the dissolution of the marriage but once the court grants a decree absolute, there is no longer any right to appeal the dissolution. A Decree Nisi can be described as a provisional decree or order by the court stating the date on which the marriage will end unless a good reason not to grant a divorce is produced. It must be noted that this order does not immediately dissolve the marriage.
The couple can still be said to be married, and in the event of death of either of the parties during the subsistence of the decree nisi, the surviving party would still be entitled to the privileges and benefits of a surviving spouse. This is because legally, the marriage has not yet been dissolved. The marriage is only truly dissolved and ceases to exist when the Decree Absolute is made. Only then does the divorce become complete.