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Uncontested divorce in Nigeria

 

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Uncontested divorce in Nigeria: What it all about.

In Nigeria, divorce can either be contested or uncontested. In a contested divorce, the husband or the wife sue for dissolution of marriage as Petitioner, and the other partner defends the suit as Respondent.

In a contested divorce, the husband and wife, contest for issues of custody of children, rights over joint marital properties, payment of alimonies, and other significant issues.

The Petitioner files for dissolution of marriage, and the Respondent files answer to the Petition and cross-petition.

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The issues between the parties are settled by the court on the basis of evidence before the court. The Court determine who to award custody of children and the rights of the parties to the marriage as prayed in the suit.

When a divorce will be uncontested in Nigeria.

In Some States in United States, parties seeking divorce may reach pre-suit agreement to dissolve their marriage and determine the terms upon which the court will dissolve their marriage.

In those jurisdiction, the parties can determine issues of custody of Children, payment of alimonies,  joint marital properties, and other significant issues.

The court will grant them divorce on the basis of their agreement.

In Nigeria, this seldomly apply except by behind the Scene strategy. A divorce is only uncontested on the ground that the other spouse sued, didn’t appear in court to answer to the petition for dissolution of marriage.

Where a Respondent fails to file answer to the petition and cross petition, then the divorce is uncontested.

In this situation, the court will decide the petition on the whims of one party if the court is satisfied that the prayers of the party should be granted.

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What happens in Uncontested Divorce in Nigeria?

Whenever the notice of Petition is served on the Respondent, the Respondent has  days to file Respondent answer to the Petition and Cross- Petition.

At the expiration of the days, the Petitioner can bring Motion on notice to Proof his case. A copy of the said Motion together with hearing notice will be served on the Respondent.

On the date slated for the Motion, if the Respondent fails to appear, the court can grant leave to the Petitioner’s counsel to move his Motion. Once the Motion is moved and granted, the Petitioner will be allowed to open his case.

The Petitioner will testify in examination in Chief. At the end of Petitioner’s evidence, the court may adjourn for the Respondent to cross-examine the Petitioner. On the next date, if the Respondent is not in Court, the Respondent counsel will apply to Court to foreclose the Respondent from cross-examining the Petitioner.

If the applicationt for foreclose is granted, the Petitioner will be discharged from the witness box. Thereafter, the Petitioner, through his counsel will close his case.

At this point, the court in the interest of justice may adjourn again, for the Respondent to open it’s defence. On the next date, if the Respondent is not in Court, the Respondent will be for elosed from giving evidence on the application of the Petitioner’s counsel.

At this point, the court may grant leave to the Petitioner to file and adopt his final written address, before adjourning for judgement.

The Court if satisfied that the Plaintiff has proved his case shall proceed to grant the Petitioner the reliefs sought in the suit.

Can parties agree to Divorce under Nigerian Law?

Behind the Scene Strategy

It is possible for parties to agree to Divorce themselves outside the court system. The kind of agreement envisaged here is premeditated agreement. That is, willful agreement. In other words, parties voluntarily wants to divorce but for the obvious requirements of law, they want to willfully facilitate it.

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This may not be easy though. This is because, it may require either party to the marriage to accept that he or she has committed adultery and for the other party to alleged it even when in real sense, nothing of such has occured.

Again, it may require either of them to lie that they have been living apart for 3 years or more, and for the other party to corroborate it by not challenging it in his or her own process.

It may also require a party to allege issue of domestic violence or abuses against the other party, and for the other party not to refute same. All these are lies behind the scene, and with them, it is possible to get divorce so easily.

All these will ground the Petition for dissolution of marriage when it is filed.

Before Court.

Before Court of law, it is impossible to get divorce by mutual consent. First, the Matrimonial Causes Act provides the basic ground for dissolution of marriage.

Section 15 of the matrimonial causes Act states that the only ground for dissolution of marriage is that the marriage has broken down irretrievably.

The fact upon which the court will infer that the marriage has broken down irretrievably are as follows:

(a)     that the respondent has wilfully and persistently refused to consummate the   marriage;  
(b)   that since the marriage the respondent has committed adultery and the peti‐   tioner finds it intolerable to live with the respondent;  
(c)     that since the marriage the respondent has behaved in such a way that the peti‐   tioner cannot reasonably be expected to live with the respondent;  
(d)   that the respondent has deserted the petitioner for a continuous period of at  
least one year immediately preceding the presentation of the petition;  
(e)     that the parties to the marriage 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;  
(f)     that the parties to the marriage have lived apart for a continuous period of a   least three years immediately preceding the presentation of the petition;  
(g)     that the other party to the marriage has, for a period of not less than one year,   failed to comply with a decree or restitution of conjugal rights made under his   Act;  
(h)     that the other party to the marriage has been absent from the petitioner for such   time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.  

It follows that a party seeking divorce must prove to the satisfaction of court that the marriage has broken down irretrievably, and he or she cannot reasonably be expected to live with the Respondent.

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Beside the issue of Proof, the Nigerian law forbids connivance and collusion.

If it is brought to the knowledge of the court that parties connived, or colluded to the divorce, the court will struck out the petition seeking dissolution of the marriage.

Connivance most commonly refers to a defense in divorce law in which a spouse accused of adultery, or another form of sexual misconduct, asserts that the other spouse consented to the adultery.

While collusion means that the spouses secretly agreed to obtain the divorce or judicial decision for some wrongful or improper purpose.

Will the Petitioner appear in Court in uncontested Divorce?

Unlike the case of uncontested divorce as applicable to some States in America (Virginia and Colorado) the Petitioner, though the divorce is not contested will appear in Court.

The Petitioner will appear in Court to adopt his or her witness statement on Oath and tender the necessary document.

The Place of Marriage Certificate

Whether contested or uncontested divorce, the importance of the marriage certificate cannot be overlooked. The marriage certificate constitute an evidence that there was a marriage under the Act. It confers jurisdiction on the Court to dissolve the marriage.

How long will the uncontested divorce last?

It can last for 3 to 5 months. It depends on the availability of the judge, the corporation of litigants and their counsel.

How much does uncontested divorce cost in Nigeria?

Uncontested divorce can cost up to #100, 000 to #300, 000, which represents Attorney charges, in addition to cost of filing processes.

Which court has power to dissolve uncontested dovorce

The only court that has jurisprudence to dissolve marriage under the Act in Nigeria is the High Court. It is immaterial that the divorce is unconditional.

For further inquiry, call 08148970746. or 07062392662

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