Before diving into how to get a divorce in Nigeria, there are things you need to know about divorce in Nigeria.
First, What type of divorce do you want?
Just like many States in United States, divorce in Nigeria could be contested or uncontested.
In Nigeria, Divorce is uncontested where either spouses files the petition for dissolution of marriage and the said petition is served on the other spouse, and the other spouses neglects or fails to file answer to the petition and cross- petition.
In this way, the facts alleged in the petition remains unchallenged and the petitioner could get all the reliefs proved in the petition for divorce.
In Nigeria, as far as uncontested divorce is concerned, there is no pre-suit agreement between the spouses and couples do not file settlement papers as applicable in Colorado and other States in USA.
Even where your partner elects not to contest the divorce, he or she can only abstain from filing anwers and cross-petition. He or she can as well, abstain from putting up appearance in Court during the pendency of the divorce suit.
In situation where a spouse served with the petition abstains from defending the divorce suit, the suit is uncontested, and default judgement may be given in his or her absence.
Though, this rarely happens. This is because, even where the suit is undefended, the petitioner is still expected to prove his or her case on the preponderance of evidence.
However, divorce is contested in Nigeria, where the other spouse upon being served with the petition, disagrees on the facts alleged in the petition, and the reliefs sought therein.
In this case, the party contesting the divorce is expected to file answer to the petition and cross petition. While the party who filed the petition, upon being served with the answer to the petition, will file Reply to answer to the Petition and Cross Petition.
Secondly, You Can only Get divorce in Nigeria if your marriage was Contracted in Nigeria.
In Nigeria, only marriage between Nigerians contracted in Nigeria, can be dissolved by a Nigerian Court. Hence, for you to get divorce in Nigeria, you must be married under Nigerian law or native law and custom.
Thirdly, there is only one Ground For dissolution of Marriage.
A party can present petition for dissolution of marriage only on one ground that the marriage has broken down irretrievably.
The circumstances in which the court will hold that a marriage, has broken down irretrievably include:
- a Lack of consummation.
- Adultery when the petitioner finds it intolerable.
- Respondent’s irresponsible behaviour such as habitual drunkness, intoxication, convicted for crime(within five years) or left the petitioner without reasonable support, convicted for attempted murder of petitioner or inflicting grievous harm.
- Where the spouse deserts the other for a very long or unreasonable period without any explanation.
- Living apart from two years and the Respondent does not object.
- Living apart for three years.
- Failure to comply with decree of restitution of conjugal rights.
- Presumption of death after 7 years.
Fourthly, There is two Years Rule
Under the Matrimonial Causes Act, Where the marriage is less than 2 years, the leave of court must be sought before instituting proceedings. The implication is that, couples cannot file for divorce within 2 years of their marriage, except by leave of court or except if the ground upon which the application for dissolution of marriage is sought is among the grounds stipulated under section 15(2)(a) or (b) and 16(1) a
Now, Do you want Statutory divorce or Customary divorce?
In Nigeria, there are majorly, two types of marriage: Statutory marriage and customary marriage (Islamic marriage inclusive).
The type of marriage you Contracted determine where you file your divorce application. Your divorce can either be in High Court or in Customary Court.
Customary divorce is available for couples who contracted only customary marriage- marriage under the native law and custom of a particular place in Nigeria.
Where you married your spouse under the native law and custom of a particular place, and you and your spouse were not married Statutorily, your divorce application will be filed at Customary Court.
Alternatively, you can use non-judicial means to divorce your partner. The non-judicial means include: Taking your partner back to her parents house and demanding the refund of the bride price, in the case of the woman, she can return to her father’s house and inform her husband that she is no longer interested in the marriage.
Using judicial means of dissolving customary marriage, any person who desire to dissolve his or her marriage customarily, shall file petition for dissolution of the marriage at the customary court registry of the place where the marriage was contracted.
Customary marriage can also be dissolved by non-judicial means such as when either of the spouses abandons the other after informing him or her that she or he is no longer interested in the marriage, or when the bride price is refunded.
How to dissolve customary marriage varies from place to place in Nigeria.
However, Statutory divorce is available for couples who contracted marriage under the Act- That is marriage under the Marriage Act or what is commonly referred to as “Court marriage”.
By virtue of the Matrimonial Causes Act, only the High Court Has power to dissolve marriage under the Act.
To get divorce in High Courts(for those who contracted Statutory marriage) in Nigeria, Follow the Steps below:
Hire a lawyer: In your divorce journey, you don’t know whether your divorce is going to be contested or not. Even if it is not going to be contested, you still cannot go through the process of divorce in Nigeria, without the aid of a lawyer.
The process is rigorous and a lot of legal documents are involved that a non- lawyer wouldn’t know how to prepare them.
Your lawyer files the petition.
Divorce application in Nigeria is commenced by way of petition. The notice of petition can be filed in any High Court in Nigeria regardless of the State where you contracted the marriage.
The said notice of petition will be accompanied by:
- the petition for dissolution of marriage,
- Verifying Affidavit,
- The notice of Trial duly signed by the Registrar
- The request to set Suit down for Trial
- The Registrar’s Certificate that suit is set down for trial.
- A copy of the certificate of marriage attached to the application.
Serve the Petition and accompanying processes on Your partner.
In the Petition filed, you are the Petitioner and your spouse will be the Respondent. After filing, a copy of the petition will be served on your partner through the bailiff of Court.
When it comes to Service of Process, your partner can be served by either personal means or substituted means. Personal means of serving implies that the bailliff will go handover the copy of the petition to your partner directly and he or she will acknowledge receipt of same.
But where your partner is unavailable or cannot be reached to affect the personal service, he or she can be served by substituted means. Nigerian law allows for service by pasting the process at the last know address of your spouse or any other place as the order of court may direct. This means of service requires leave of Court.
Your partner will file Answer to the Petition and Cross Petition where he or she desires to do so.
An answer is filed by Respondent- a person sued in the divorce suit. If an answer is filed, it means the divorce is contested. A Respondent who desires to contest a divorce has 14 days to file answer.
But if he or she does not file same within 14 days frrom the date the Respondent was served with the petition, it means the divorce is uncontested. Though, in rare cases, your partner’s lawyer may file out of time prescribed by rules of Court with leave of court.
In an answer to the petition, the Respondent, may where a petition contain allegation of facts, allege that he does not know and cannot admit the truth of the fact alleged in the petition, he can as well allege additional facts.
File and Serve the Reply to Petition and Answer to Cross Petition.
This is the job of your lawyer, and he will keep you informed on when you are served with answer from your spouse.
Setting down the Suit for Trial
Having filed all pleadings, including petition, answer, reply or rejoinder(if any) the petitioner’s counsel is expected to request to set the suit down for trial.
Under the Matrimonial Causes Act, This is done by filing FORM 31 in case of undefended suit and Form 32 in case of Defended suit which must be signed by the counsel. Upon the form being filed, the Registrar shall issue a Notice of trial as in FORM 33.
But in Practice, At the Close of pleading, the Suit is set down for Mention.
At the close of filing of processes or at the expiration of the time prescribed by rules of court for your spouse to file answer to the petition, whichever that comes first, the suit will be set down for mention.
At mention Stage, your lawyer will inform the court that the matter is coming up for the first time, and that parties have exchaneged pleadings. Your lawyer may also inform the court that your spouse is yet to file answer in defence of the suit.
Assuming the petition and answer have been filed and served by both of you, the court will adjourn for Pre-trial conference and your lawyers will file the necessary forms.
The pre-trial stage can be waived on agreement of both counsel for the petitioner and Respondent. But the pre-trial forms must be filed. Where it waived the matter will proceed to hearing. But if it is not waived, the parties will adopt their various forms and court will adjourn for hearing.
At hearing, the petitioner will give evidence first. In Nigeria, the frontlaoding system requires that witnesses file their statement on Oath. The witness statement on Oath constitute evidence of parties. Parties only come to court during hearing to adopt it and be cross-examined.
Hearing of the petition must be in open court, though court may order the exclusion of persons who are not parties or legal advisers during 5he hearing or part of the hearing.
Adoption of Final addresses.
Once the court hears both parties, the court will adjourn for filing and adoption of final written address. Sometimes, court will allow 21 days from the date the date the hearing ended for parties to file file their addresses.
After Court have heared both side, court gives it’s verdict and makes final order as relates to property, dissolution, custody of children, visitation schedule, maintenance (alimony) etc.
In dissolving the marriage, the court will make order nisi which last for a period of 3 months after which it may be made absolute.
A party is entiled to appeal against a decree nisi within 3 months as of right. But if he fails to appeal against a decree nisi having time opportunity to do so and the decree nisi is made absolute, then the right to appeal ceases. Once an appeal has been duly filed against a decree nisi, it acts as a stay to making an order of decree absolute.
As long as there is a valid appeal against a decree nisi, it will not become absolute except at the expiration of 28 days from the day on which the appeal is determined or discontinued.
A decree nisi shall not also become absolute where there are children of the marriage who are under the age of the 16 years at the date of the decree nisi unless the court is satisfied that proper arrangements have been made for the welfare, advancement and education of the children.
A decree nisi shall not become absolute unless the court is satisfied that there are special circumstances that warrant the decree nisi being made absolute.
A decree nisi shall not become absolute where either the parties to the marriage has died before the order is made absolute.
A decree nisi may be rescinded by either of the parties before it becomes absolute upon the application of either part or where the court is satisfied that there is a miscarriage of justice.
Where a decree nisi becomes absolute the Registrar shall issue a certificate in Form 40 and by virtue of Section 33 of MCA, a party to the marriage where a decree of absolute had been obtained can marry again as if the marriage had been dissolved by death.