Following the recent story surrounding the death of famous Nigerian gospel singer Osinachi Nwachukwu, abusive marriage and divorce have become a trending topic of discourse.
Many have described the singer’s death as ‘avoidable’ if she had separated from her husband.
However, not too many Nigerians know what divorce or separation entails.
Here, PREMIUM TIMES, in an interview with Olusola Jegede, a legal practitioner, explores Nigeria’s law’s stance regarding the legality of marriage, divorce, and dissolution of marriage.
Mr Jegede is the Managing Partner at Resolution Law Firm. He holds a Bachelor of Laws, LL.B from the University of Bradford, United Kingdom.
He later attended Nigerian Law School and was called to the Nigerian Bar. He also studied for a Master of Law (LL.M) from the University of Lagos.
PT: What makes a marriage illegal in Nigeria?
Olusola: I don’t think any marriage can be illegal unless such marriage does not conform to the procedure of law. There are different types of marriage, and the increase in divorce rate is not a result of marriage being legal or not. Divorce has nothing to do with the legality of the wedding.
PT: What are the types of marriages recognised by Nigerian law?
Olusola: There are different types of marriage in Nigeria. We have a customary, statutory marriage: the one many people know as court marriage and the Islamic marriage.
But then, if any kind of marriage does not comply with the provisions of law, such marriage is not liable for dissolution. Parties involved in such marriage do not fight for divorce but rather an annulment of that marriage, to completely annul the marriage as though the marriage never occurred in the first place.
PT: You mentioned statutory, customary, and Islamic marriages as the types of marriages recognised in Nigeria. Are they also separable by law?
Olusola: Marriage is a voluntary cohabitation of one person with another, any form of marriage.
All forms of marriage are liable for dissolution if the parties cannot cohabit together. No marriage precludes dissolution by the court of law, but the court you approach is different. You come to the court based on your type of wedding.
If it is statutory marriage, the court you visit is called the ‘high court’ of any state in Nigeria where you reside.
But if it is a customary or Islamic marriage, the appropriate court to visit are customary courts. Traditional marriages that just paid dowry and didn’t go to court or registry fall under customary marriage.
Also, the Islamic marriage where ‘nikah’ was done falls under the customary marriage, so the court you go to assuming you want to dissolve such a marriage would be customary, not a high court.
PT: What about marriages conducted in a small church?
Olusola: It depends on whether the church is registered with the government. The marriages conducted in churches can go either way. It depends on the status of that church. If the church is well documented with the marriage registry from the local government, then any marriage conducted in such a church is a statutory marriage.
An example of a church that conducts such marriages is the Catholic church. Almost all Catholic churches are registered with the local government, and all the marriages conducted there are considered statutory marriages. It is likened to the local government registry or marriage registry.
PT: How about the churches not registered with the local government?
Olusola: If a church isn’t registered with the local government council and doesn’t send their members to the local government council to register their marriages, any wedding they conduct does not meet the requirement of statutory marriages.
Therefore any marriage conducted in such churches automatically falls under customary marriage. It depends on the status of the church. Suppose it is a church registered with the marriage registry. In that case, it becomes a statutory marriage, but if it is a church that is not written, they are just conducting its services, using its divine power. Any marriage such church conducted is a customary marriage.
PT: Does it make it lesser than a statutory marriage?
Olusola: All marriages are equal to the law, but when it comes to divorce, you approach the court and legal system that authorise such marriage, whether it is statutory, customary, or Islamic.
PT: What grounds does Nigeria law recognise for dissolution of marriage?
Olusola: Under Nigerian law, there is only one ground for a marriage to be dissolved when you talk about statutory marriage. That ground is that the marriage has broken down irretrievably.
According to section 15 (2) of the Marital Causes Act, the law governs Nigeria’s dissolution of statutory marriages.
It states that marriage has broken down irretrievably due to eight different facts, so those eight additional facts are sub-grounds of the significant ground that the marriage has broken irretrievably.
The first of those grounds is whether the marriage has been consummated. Whether adultery has taken place or not. Whether there is a matter of intolerable behaviour, that is, if the behaviour of one of the parties in the marriage is so unacceptable that the other party cannot cohabit with the other person, that’s the most common ground people use for divorce.
Whether desertion has occurred, if you have deserted your spouse for one year. Whether the two of you are living apart for two years, and the other party does not object to the divorce being granted and then whether the two are apart for three years, whether the other party object or does not object to divorce, that marriage is on its way to dissolution.
Also, whether the court has made an order to conjugal rights and that order has been flaunted, maybe the partners are not having sex, and it was brought to the notice of the court and the court rules that they should resume intercourse and the other party disregards the ruling of the court, that’s another ground for a divorce, and lastly whether a party is missing to predict that that person is dead, the person must have been missing for seven years under the Evidence Act. It could be that the person just left home. They didn’t see such a person for seven years, and they didn’t know whether he was dead or alive. It is a valid ground to divorce the marriage.
These are facts upon which the grounds to divorce marriage are established. In law, we call them the eight reasons which the law provides for you to prove that the marriage has broken down irretrievably, and out of the eight reasons, you are expected to demonstrate only one before the law court.
PT: What are the processes of filing for a divorce to prove that the marriage has been broken?
Olusola: Regardless of the type of marriage, the filing in court is unique to the kind of court the marriage is contracted under.
If it is a statutory marriage, you will file at the high court, and you will be filing what we call a ‘divorce petition’ with the notice of divorce petition.
You can file it through your lawyer at any state high court registry. Once it is filed, it would be personally served to the other party. If the other party is unavailable, it can be performed by substituted means, which will come with an order of the court to seek another means to serve the person. Helping the person is not the only means now. We can send it to the person through WhatsApp, by email or you can get even paste it in front of his house. All these are called substituted means.
PT: Why substituted means, though?
Olusola: When they know you want to serve the court papers, some people will not just be available to collect them. They would just be jumping up and down. The other party does not want to manage a marriage, which does not stop the divorce process. The petitioner must ask the court to serve the person by substituted means, maybe by electronic or pasting.
So when the service has been done, the other party would have up to 28 days to file their response, and after that, the matter can now be set down for trial. That’s when the case hearing begins or the evidence of both parties before making decisions on the subject.
PT: Are there other peculiarities to obtaining a divorce aside from filing?
Olusola: How the case will take will depend on what happened in that marriage. The circumstance of the marriage could be whether they have children or whether they have properties together. When there are such circumstances, the court settles all such peculiarities, but all the divorce processes must go through the court.
PT: What is the difference between marriage annulment and separation of marriage?
Olusola: The eight facts we’ve discussed earlier, they are for divorce, what it means is that ‘yes the marriage was valid and the union was genuine, but the parties can’t just live together again, based on any of those reasons. In that case, what they do is a divorce also known as dissolution of marriage.
But there are some marriages that, from the beginning, are not valid.
PT: Please give instances of invalid marriages?
Olusola: For somebody who has married somebody else before, we have seen cases where somebody married and another person returned to marry the person. Still, that second marriage is not valid.
Suppose you marry somebody under 18 years because, under the Child Right Act of all states in Nigeria, 18 years is now the age of consent. So, if you marry somebody who is not up to the age of consent, it is not also a valid marriage. It is also a ground for annulment.
If you marry a person who somehow is related to you to some degree that you can prove, it is also not a valid marriage and can be annulled.
And if the marriage was also done under duress, somebody forced you to do it, or you were under severe threat or blackmailed into the wedding, it is probable ground for annulment.
Or the marriage was done by mistake, and maybe at the time the person was signing the marriage certificate, he thought he was signing a ‘C of O’ of land, and it turns out to be a marriage certificate, or they did not even know what they were doing there, and we have had several cases like that, that the person did not realise what was happening until he has signed the marriage papers.
The law considers that kind of marriage invalid and they are void. You cannot place something over anything, so if the marriage is not valid, the party involved should not be talking about divorce because it was not a good marriage in the first place. The bone of contention should be annulment, not divorce. An annulment is in two categories.
PT: Which are?
Olusola: We have what we call void and voidable. The void is the earlier ones I have stated like marrying someone below the age of consent or marrying someone married to someone else. These are ‘Void ad Initio’, meaning they have no legal effect from inception. Even if the court doesn’t see them as void, they are unenforceable, but you may always need a court order so the parties involved can know where they are in life because they can still be fighting and arguing.
The voidable are those marriages where one of the union parties seems not to be okay with the circumstance of the union that makes it voidable. An example is where a party in the marriage has some kind of mental disorder at the time of the wedding that was made known to the other party of the union.
Voidable marriages are not void on their own until you have approached the court to declare they are void. If the wedding is valid, what is obtainable is a divorce, but if the marriage is invalid, the court will annul the marriage.
PT: Do divorce and annulment have the same filing processes?
Olusola: Yes, the two are done at the same court and have the same process by petitioning the high court. A marriage cannot be annulled in a customary court. What the regular court can do is divorce a marriage.
PT: Why can’t the customary court annul marriages?
Olusola: The customary court does not have the ground for annulment because of what we call jurisdiction in legal terms. It means that their law does not cover the dissolution of marriage. What they usually do is divorce in marriage.
Annulment of marriage is not in our customs; the customary courts lack the provisions to annul any marriage.
It is not in the provision of the law and the statute for the condition of the customary court. From our history, whether Yoruba or Igbo, we don’t understand the phenomenon that a marriage is annulled.
Under our own culture, what is obtainable is that the elders can separate the couple if they cannot live together.
PT: Is divorce predominant and obtainable under Sharia law?
Olusola: Although the causes of divorce are not that much in Sharia, because we are here in Lagos, where there is no functioning Sharia court, it is not feasible, except if we are in the north. Personally, not from the point of law per se. We have lesser divorce cases among Muslims.
Although many Muslims do statutory marriage, we have seen divorce cases for those who did statutory marriage in the high court. Due to modernisation and everything most people do statutory marriage, whether Christians or Muslims if you want to travel abroad, especially if you want to take your family along; most American and European countries would demand your marriage certificate, which can only be obtained from a statutory marriage because that is what their law recognises.
The statutory marriage is not for Christians alone. Both Christians and Muslims have issues that also lead to divorce.
PT: How does one divorce in customary marriage?
Olusola: Customary marriage is not based on religion. It is purely based on customs and traditions, the payment of dowry. Dowries are what symbolise marriage under our customary law.
PT: Over time, we have seen room for alimony in some divorce cases. How does it work in Nigeria?
Olusola: There are provisions of alimony under our matrimonial causes ac. Section 72, 73, 74, and 75 permit the court to make an order on settlement of properties among couples, which we know as alimony on hearing of a divorce petition.
To an extent, alimony is a work in progress in Nigeria, but we do not have laws that advocate for joint properties for families like the way some other jurisdictions. In Nigeria, we don’t have such a law, but in Case law comes into play in some this area, where the court had heard in many cases that if the wife has always been there when the husband acquired the properties, it should be shared for two of them, even if the other party did not contribute. However, the alimony works better in Nigeria when both parties contribute to the family assets and estate, or the properties were bought with the names of both parties; whether one party contributed or not, as long as the documents show that the papers reflect the name of both parties, for example, Mr and Mrs XYZ, there is a strong case for alimony.
In some cases, the court might give the property to just one person, and the court might even transfer the property to their children. The court has those powers.
PT: Why would the person who did not contribute to the property be given a share?
Olusola: As I said, the alimony has not been fully developed. The party who did not contribute to acquiring a particular property, especially a woman, is entitled to her husband’s property even when she did not donate, as long as the property was developed within the marriage.
Although the other party does not co-own the property, they could sell it even before the divorce begins. That is why the court will require that parties involved file ‘Particulars of means’, which means, come and tell the court what you own and what you don’t own, and indeed people point it, but very few can say that these things are filed appropriately. And Nigeria doesn’t have a solid database for accessing a person’s net worth, which is why the court works with what is filed.
PT: According to the law, who takes custody of the kids who are below 18 years of age?
Olusola: Any parties can take custody of the kids because when the court deals with the charging issue, the child’s interest is paramount. We have had cases where the child says I want to stay with my mum or dad.
The court must first consider the interest of the kids, and then in thinking that, it must look at which of these parties can provide the convenience the child or children needs in their advancement, academics, maintenance and others. The court must look into that, assuming both parties are equal to the task. The custody of children has now involved if those children are below the age of 14 or 15. The court, in most cases, would give possession to the woman because it is believed that women take care of the children more than the man.
PT: How long does a divorce process take?
Olusola: You can’t say a specific time for a divorce, but on average, you can be talking about one year, but it depends on the location where you are filed. Filling in Lagos or Abuja will take one to two years. You know what affects Nigerian courts are the workloads of the judges, we have fewer courts in Nigeria and too many cases, and all these things cause delay.
If not, because the court is fewer and there are many custody cases, the entire process can be concluded within four to five months, and everybody would forget that there was a divorce. But also, there is a delay in adjournment, which is a court delay, leading many Nigerians abroad to procure fake divorces.
Over 50 per cent of divorce certificates Nigerians send abroad are fake, and most times, it is because of the delays in obtaining divorce certificates here in Nigeria.
Most married Nigerians seeking citizenship abroad present fake divorce certificates. From experience, we find that Nigerians abroad tender fake divorce certificates from Nigeria in a foreign court. Only a few are patient and can wait for the courts, and its attendant delays
PT: Why do people get fake divorce certificates?
Olusola: Many Nigerians are always in a hurry, maybe they need the divorce to facilitate their residence and remarry abroad, but they are not patient enough.
Divorce is not a quick-go thing, as Nollywood often portrays it. Sometimes a highly contentious divorce where there is an issue of custody and properties to settle, the divorce can take more than three years. Still, by and large, if you want to divorce, you should be looking at nine months because the court will do adjournments. Nigeria’s justices will go on a two-month vacation, where the court doesn’t sit, and there are other statutory delays.
Even when you file a divorce petition, you must wait for about 28 days before the other party would respond, that is even before the main case starts, and when you have now even won, let’s say the court has now granted the divorce, the other party cannot remarry instantly.
Olusola: Because the divorce has not become absolute, the parties must wait at least three months for it to become absolute before the final divorce certificate is issued. So, when you look at that delay that has been put in place by the law, somebody can’t finish a divorce process in three months.
The statutory delay is only two to five months, which the judiciary system has provided, and you must comply. The period between when the period between which the judgment is given and when it becomes ‘decree absolute’ because of what the court initially issues is called ‘Decree Nisi’, which is not yet permanent. It will become permanent after 90 days.
PT: What happens within that 90days?
Olusola: If anybody wants to appeal within that period, they can come forward, and anyone who wants to intervene can continue with the case. After those 90 days, it becomes permanent. You cannot appeal the divorce anymore.
PT: Do we have incidences of fake divorce in Nigeria?
Olusola: Is there anywhere in Nigeria that there is no fake, with all the amount of counterfeit things happening in Nigeria? I just handled a case where my client received a dud international cheque for a business worth millions of dollars. If there can be a fake international cheque, is there anything that cannot be faked in this country?
So, there is fake divorce too, but it often happens for those abroad because if you are in Nigeria, you must know that you have to go to court to testify.
The type of marriage would determine the longevity of the divorce process.
Customary marriage can be dissolved in no time because there are traditional courts in almost all the local governments in Lagos, and those are the only things they do.
But when it comes to statutory marriage, you are going to the high court. As populated as it is, we don’t even have up to 80 judges working in the entire Lagos. About 25 per cent of them hear divorce cases, among many other issues.
PT: What is the implication of having a fake divorce certificate?
Olusola: It means that you are still married to your old spouse and that marriage has never been divorced.
PT: What has been your most challenging divorce case?
Olusola: As a legal counsel, we are not meant to discuss clients’ cases, but I can give you a scenario because most cases deal with confidentiality. These are part of the contract the client signed with us, but without mentioning any of the parties, the divorce that always gives us challenges are those that involve custody of children. They are more challenging than a divorce that involves properties.
I have witnessed couples nearly exchange blows in divorce conferences as a lawyer. When children are involved, the court will ask us to do a ‘Compulsory Conference’, ‘go and settle among yourselves. Once a party has taken custody, the other party has the right to visitation. That’s their statutory right. I have many cases of contention in Nigeria.
PT: From your years of many practices, what are the predominant causes of divorce in Nigeria?
Olusola: When I mentioned the eight reasons the marriage has broken irretrievably, the focus is usually intolerable behaviour. In section 15 (2c), if the behaviour of one party is unacceptable, they cannot cohabit.
It is the ground on which every other reason for divorce is anchored. It is also a result of accumulated anger. As a married man, I have realised that one anger leads to other reasons for divorce. A person can be angry and leave the house, which would lead to desertion. Another reason that causes the anger that we see is infidelity.
PT: In your years of practice, have you seen a situation where a party files for divorce and the other party refuses to accept the notification from the court?
Olusola: To respond is not mandatory before the law. These are misconceptions you get from watching too much of Nollywood.
The provisions of the law are that when you are taking anybody to court, there is what they call the right to a fair hearing, so the other party is already aware that they can make representation in court.
That is why the petitioner serves them the petition. They don’t need to sign anything, although there is an acknowledgement form when we perform a divorce petition.
Although some people won’t acknowledge it, there must be an order to resort to substituted means like mail, WhatsApp, and even pasting on the wall. But serving is to make them aware of the case against them.
PT: Aside from the court, some people meet their pastor, imam, priest, bishop, or traditional head, and the marriage is dissolved. Is that valid?
Olusola: We see that happen in customary law often when the dowry is returned.
I am currently handling a case where the man said he had returned the dowry and believes he is divorced. He isn’t bothered about what we are doing in the court. For him, the marriage is dissolved under tradition.
Some people give more preference to their religion and customs. It is binding to the extent of their patronage or religion. If you have done a statutory marriage in the registry and returned a dowry before the law, that’s not binding.
If a person does traditional or church marriage and then goes to the local government or a marriage registry, the last one takes preeminence over the others. Even if you return the dowry, you must go to court.
Because one of the functions of marriage is that it transfers assets, many people don’t leave a will in Nigeria. Once you don’t, under the provisions of the estate law of Lagos state, your spouse is the first person in line to inherit whatever you have left; your spouse stands ahead of your children. So, if you do not do that, divorce appropriately, and your spouse still has the marriage certificate; because no divorce in court has been validated without a certificate.
That person is the first person in line with whatever you left behind. But if you did have a statutory marriage and return a dowry, if that is acceptable in your custom, it is valid.
PT: Having practised over the years, what are the solutions to marital problems in Nigeria?
Olusola: I think it is the pastors and the Imams that would give you the best answer that we, the lawyers are always at the last end because before somebody would meet a lawyer and say ‘help me fight for a divorce’, you must have exhausted all options. The first people who usually intervene in marriage issues are the parents and from the parents to the pastor, so in most cases, before they come to a lawyer, there is little we can do. We are just like an undertaker that just helps bury the marriage.
But we’ve cases where the clients settled even before the trial proper. But I know from my experience that partners need to be patient.
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