Matrimony
is one of the most celebrated acts globally, where the union between a couple is
legally recognized, more often than not – for life or till divorce takes a
course in the relationship between the parties.
Where parties are considering a divorce, it is usually expected of couples to
resolve their differences by way of alternative dispute resolution mechanisms.
However, where such differences cannot be resolved, parties may wish to bring a
Matrimonial Cause action to resolve differences either for the purposes of
preserving or spifflicating the marriage.
In
instituting a matrimonial cause action, it is important to pay attention to the
applicable laws. The applicable laws as relates to Matrimonial Causes in
Nigeria are the Matrimonial Causes Act
2004 (hereafter MCA), the Matrimonial Causes Rules 1983 and of
course, Case Law. The provisions of
the Matrimonial Causes Act are however only applicable to valid marriages
conducted in pursuance with the Act.
The
High Court of the Federal Capital Territory or State has jurisdiction to
entertain Matrimonial Cause action and is taken to be one Division for the
purposes of Matrimonial Cause actions. This
explains why a person who is domiciled in Ogun State, Nigeria may institute
proceedings in any High Court within Nigeria, whether or not he is resident in such
state. See: ADEGOROYE v. ADEGOROYE and
Section 2(3) of the MCA.
The
MCA makes provision for several
reliefs that can be obtained by the Petitioner in a Matrimonial Cause action.
These reliefs are provided under Section
114 of the MCA, viz:
1. DISSOLUTION OF
MARRIAGE
Dissolution
of marriage can be granted on just one ground i.e, that the marriage has broken down irretrievably as per section 15(1) of the MCA. Any of the following facts below
can be used to satisfactorily establish this ground:
a.
The respondent has willfully
and persistently refused to consummate the marriage.
b.
The respondent has
committed adultery and the petitioner finds it intolerable to live with him/her.
c.
Since the marriage,
the respondent has behaved in a way that the Petitioner cannot reasonably be
expected to live with him/her.
d.
The respondent has deserted
the Petitioner for a continuous period of at least one year immediately preceding
the filing of the petition.
e.
The parties have been
living apart for a continuous period of two (2) years immediately preceding the
petition with no objection by the Respondent to the grant of a decree of
dissolution.
f.
The parties have been
living apart for three years immediately preceding the petition.
g.
Failure of the
respondent to comply with a decree of restitution of conjugal rights after one
year of the Court Order.
h.
Presumption that the
Respondent is dead because he has been absent for such a time and in such
circumstances as to provide reasonable grounds to prove death.
2. NULLITY OF VOID
MARRIAGE
Another
relief available under the MCA is
the nullity of void marriage relief. Here,
the petition is brought on the basis that
the marriage is non-compliant with the MCA.
Such non-compliance is usually based on any of the following:
a.
Either of the parties
at the time of marriage was lawfully married to some other person. section 35 of the MCA.
b.
The parties are
within the prohibited degree of consanguinity and affinity. See section 35 of the MCA.
c.
The marriage is invalid
as it fails to comply with the requirements of solemnization. See section 33(2) of the MCA.
d.
There is the absence
of real consent of the parties to the marriage because the consent was obtained
by fraud, mistake.
e.
Either party is not
of a marriageable age (21 years). See section
3 of the MCA.
3.
NULLITY
OF VOIDABLE MARRIAGE
This
is similar to the relief immediately mentioned above, but distinct in the sense
that, the marriage is validly conducted until set aside by a court.
Worthy to note is the fact that only a person aggrieved can bring a petition
for its nullity. The grounds for filing a petition for nullity of a voidable
marriage are:
a.
Either party at the
time of the marriage was incapable of consummating the marriage. See section 35 and 36 of the MCA.
b.
Either party at the
time of the marriage is of unsound mind or mentally defective, or subject to
recurrent attacks of insanity or epilepsy.
c.
A party at the time
of the marriage is suffering from venereal disease(s) in a communicable form.
d.
The wife is pregnant
for another person other than her husband at the time of marriage. See section 5(1) of the MCA.
4.
JUDICIAL
SEPERATION
Judicial
separation is also one of the various ways by which a Matrimonial Cause action can
be instituted. A decree of judicial separation relieves the petitioner from the
obligation of cohabiting with the Respondent whilst the decree subsist. It is
akin to dissolution of marriage to the extent that, the grounds as provided
under dissolution of marriage are the same grounds for a grant of a petition
for judicial separation as per section 39
to 46 of the MCA.
The difference lies in the consequences of an order for judicial separation, viz:
a.
It relieves the
petitioner of the duty to cohabit and perform conjugal duties with the
respondent while the decree lasts.
b.
The parties can sue
each other in contract or tort.
c.
The parties can
inherit each other’s property if either of them has died intestate. See section 41 and 42 of the MCA.
d.
A decree of judicial
separation shall not prevent either party from bringing a petition for
dissolution of marriage. See section 44
of the MCA.
The court will discharge a decree of judicial
separation where parties voluntarily resume cohabitation and both consent to
the order. See section 45 of
the MCA.
5.
RESTITUTION
OF CONJUGAL RIGHTS
With
regards to this, parties to the union, whether or not they have at any time
cohabited or are not cohabiting and that without just cause or excuse, or the
Respondent refuses to cohabit and render conjugal rights to the petitioner, may
rely on this relief in a matrimonial causes action. See section 47 of the MCA.
By virtue of Section
49 of the MCA, the Court shall
not make a decree of restitution of conjugal rights unless it is satisfied
that:
a. The petitioner sincerely desires conjugal
rights to be rendered by the respondent.
b. The petitioner is willing in turn to
render conjugal rights to the respondent.
c. The petitioner had made a written request
for cohabitation in conciliatory language to the respondent before commencement
of the process except there are special circumstances that make it unnecessary
to make such a request.
6.
JACTITATION
OF MARRIAGE
With
respect to Jactitation of marriage, the petition is based on the ground that
the Respondent has falsely and persistently boasted that a marriage has existed
between the Respondent and Petitioner. It is thus a false assertion by the
Respondent of an existent marriage.
A petition can be filed for jactitation of marriage praying the Court to
restrain the respondent from asserting such and perpetually keeping quiet.
In
concluding therefore, Matrimonial Cause actions may be presented in a variety
of ways as the circumstances of the matrimony determine. Nigerian Law on
matrimonial causes is very well drafted and encompassing to address all matters
arising out of matrimonial disputes.
At Osuya and Osuya Law Firm, we are willing and very well able to provide the
best legal advice as well as represent you in relation to any aspect of your
matrimonial matter.
BIBLIOGRAPHY
1.
Matrimonial Causes Act, 2004.
2.
Matrimonial Causes Rules, 2004.
3.
ADEGOROYE v. ADEGOROYE (1996) 2 NWLR (Pt.433) 712 CA
Wilson
F. Okoi Esq.
