Divorce In The Eye Of The Law

Factors to be considered in granting a Divorce Award of damages in a divorce action.
Cruelty as a ground for divorce.
Principles guiding dissolution of marriage under Islamic law.
Joinder of parties in divorce proceedings.
Here are some Nigerian cases with rationes decidendi on divorce. Divorce is the process of legally dissolving a marriage.
Jurisdiction to entertain divorce petition Koku v. Koku ((1999) 8 NWLR (Pt. 616) 672)
Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the court with jurisdiction to adjudicate on a divorce matter is the court of the domicile of the husband.
Factors to be considered in granting a divorce Uzokwe v. Uzokwe (2016) LPELR-40945(CA).
“For the petitioner’s first ground for the petition, the provision of Section 15(2)(c) of the Matrimonial Causes Act come in handy and it states: “15(2) the Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or more of the following facts- (c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. ”
To prove this ground, the law makes it incumbent on the petitioner to show: (a) the sickening and detestable behaviour of the respondent; and (b) that the petitioner finds it intolerable to live with the respondent.
See Damulak v. Damilak (supra); Nanna v. Nanna (supra); Ibrahim v. Ibrahim (supra), It was also held in those cases that the test is objective, not a subjective one. I have placed those proved acts of misconduct against the respondent side by side with the above highlighted positions of the law.
I am of the considered view that those acts of behaviour are quite upsetting and shocking even as they are grave and weighty given the history of the said marriage. They reek of matrimonial infamous acts which have the capacity to unsettle the mind and life of any reasonable man.
When these fragmented detestable acts are pooled together, they qualify as cruel acts which, though not a ground for divorce are facts that can be used to demonstrate that the petitioner cannot reasonably be expected to live with the respondent. See Damulak v. Damulak (supra); Nanna v. Nanna (supra). In the case of Williams v. Williams (1966) 1 SCNLR 60 at 67 Idigbe, JSC stated:
“Cruelty is in its nature a cumulative charge and so an accumulation of minor acts of ill treatment causing or likely to cause the suffering spouse to break down under strain constitutes the offence; thus cruelty may consist in the aggregate of the acts alleged in a petition and each paragraph need not allege an independent act of cruelty sufficient in itself to warrant the relief sought.” – Per Tom Shaibu Yakubu, Jca
Award of damages in a divorce action
Mrs. Rose Ndibulum Enwezor V. Mr. Christopher Ifeanyi Enwezor & AnoR (2012)LCN/5780(CA)
“In divorce proceedings, the party claiming damages must justify his or her claim and also that his or her conduct was not responsible for the damages suffered. In the instant case the appellant’s breed of a child which she claimed does not belong to the respondent, was apparently the reason that triggered the long separation and subsequent marriage under customary law between the respondent and the partly-cited.
The appellant does not therefore qualify for damages caused by her own conduct. In fact she was lucky the respondent did not claim for damages against her. The sleeping dog should be let to lie.”
Per Hussein Mukhtar, JCA
Cruelty as a ground for divorce Bibilari v. Bibilari (2011) LPELR-4443(CA)
“Cruelty is not one of the grounds set out under S. 15 (2) of the Matrimonial Causes Act for divorce; it remains however, one of the old grounds for divorce.
A Court can hold that a marriage has broken down irretrievably on the ground that one spouse has been proved to be guilty of cruelty to the other. Damulak v. Damulak (2004) 8 NWLR Pt 874 C.A 151.
What then constitutes cruelty? In considering what constitutes cruelty, the Court should consider the entire evidence adduced even where there is no specific evidence of violence adduced. In Willians v. Willians (1966) 1 All NLR 36 at Pg 41/42 Idiebe JSC said thus: “The court should consider the entire evidence before it, and although not specific instance of actual violence is given in evidence it should be able, on objective appraisal of the evidence before it, to say whether or not the conduct of the respondent is of such a character as is likely to cause, or produce reasonable apprehension of, danger to life, limb or health (bodily or mental) on the part of the petitioner.”
Cruelty is a conduct which is grave. When there is injury or a reasonable apprehension of injury whether physical or mental matted out to a partner, that is sufficient to be described as a behaviour unacceptable in a marriage. Nanna v. Nanna (2006) 3 NWLR Pt 966, 1 C.A. The accumulation of minor acts of ill-treatment causing or likely to cause a spouse to breakdown under strain certainly constitutes cruelty. Like in all Civil Causes, the burden of proof rest on the Petitioner.
Therefore the test is whether the Respondents conduct will in the opinion of a reasonable man justify the Petitioner living apart. Lord Pearce in Gollina v. Gollina (1963) 2 All ER 966 reflected the concept when he said:- “It is impossible to give comprehensive definition of cruelly, but when reprehensible conduct or departure from the normal standard of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.” The learned trial Judge had the privilege to see and hear the witnesses and made his findings.
Where there is sufficient evidence in support of such findings and there is no substantial error apparent such as violation of principle of law. The attitude of the Appellant Court is not to interfere. Ezeonwu v. Onyech (1996) 3 NWLR Pt. 438 499 SC. The Appellant did not establish in evidence any conduct or act of the Respondent that constitutes cruelty. The evidence must show accumulation of acts of ill treatment causing or likely to cause the Appellant to breakdown under strain; infact one grave act will suffice.”–Per Regina Obiageli Nwodo, JCA
Principles guiding dissolution of marriage under Islamic law. Usman v. Usman (2003) 11 NWLR (Pt. 830) 109 – [Court of Appeal]
The practice of divestiture or self-redemption (“khul’u”) is one of the ways of dissolving a marriage conducted in accordance with the Sharia principles. Its peculiar nature is that it is initiated by the wife rather than by the husband. It allows that if a wife is unhappy in her marriage and the relationship between her and her husband is so strained that a harmonious union between them is impracticable, due to no fault of her husband, she may seek a divorce from him.
In that case, she may, as consideration for the divorce, surrender the dowry and, where necessary, other marital gifts to herhusband to compensate him for his material and moral losses, whilst the husband may, if he likes, waive his right of compensation and simply agree to divorce her in compliance with her request. Once “Khul’u” occurs, it becomes an irrevocable form of divorce.
Joinder of parties in divorce proceedings
Mrs. Josephine A. Ushie Vs Engineer Godwin A. Ushie. (2008) Legalpedia (CA) 11112
“The issue of joinder of parties in divorce petitions is not decided by the reliefs claimed. See Section 32(1) Matrimonial Causes Act but rather it is decided by what led to the Divorce Petition.
The only exceptions where the joinder cannot be made are:
1. where the alleged adulterer is dead
2. where the alleged adulterer is under 14 years of age
3. an infant or young person under the age of 21 years with whom incest is committed by either of the parties to the petition.”
Relatively, a woman that has children for her husband and had married him before a house is built has the right to live in the house with her children even after divorce under the provisions of the Married Woman Property Act 1882, a court held on Friday in Ibadan, Oyo State.
The belief that patriarchy is so entrenched in the Nigerian system and women have no rights even under the law has been proved to be an erroneous one, majorly propounded by those ignorant of the rights provided under the law, the court said in a landmark judgement.
The provisions of the Married Woman Property Act 1882 formed the basis of the pronouncement of the Chief Judge of Oyo State, Justice Munta Abimbola, on Friday in a property suit between a divorced couple, Toyin Arajulu, formerly known as Mrs Toyin James and her former husband, Mr James Monday.
The court held that *“a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home.”
Justice Abimbola, while ruling on the matter, emphasised what is known in law as the “palm tree justice,”which indicates that it does not matter in whose name the property stands or who pays what (on the property) and in what proportion as determination of such matters transcends all rights, legal or even equitable, but simply what order is fair and just in the circumstances of the case, citing the case of Home Vs Home (1962) 1 WLR 1124 at 1128.S 17 Married Woman Property Act 1882, which is a statute of general application.
Toyin Arajulu had filed the suit against her ex-husband, Monday James, who she married under Native Law and Customs in 1997 and for whom she had four children.
She claimed that while she was married to him, they had put resources together and built two flats of three bedrooms at Ayedun in Akure, Ondo State and procured a plot of land at No 7, Fadana Biala Estate, Olodo, Ibadan, where they built a three-bedroom flat and a storey building which is still under construction before their divorce in July 2014.
She averred that before the divorce, her husband had moved out of their matrimonial home in Olodo but only came constantly to try to forcibly eject her and the children, usually accompanied by thugs who attacked her and her children.
She added that on August 15, 2014, one of her children, Bidemi James, was wounded in one of the episodes of attempted violent eviction and the sum of N530,000 from her business taken by her ex-husband and his accomplices.
She claimed that he had concluded plans to sell off the joint property without her consent and had continued to victimise her and the children, asking the court for a declaration that the property is jointly owned by the two of them and an order that the landed property with the three-bedroom flat and uncompleted storey building be sold and proceeds divided equally between them and an order of perpetual injunction restraining James from harassing her and the children.
In his counter claim and defence, the ex-husband stated that when he bought and constructed the Akure property, his wife was a full housewife and had no contribution to the project, adding that the situation was the same for the Ibadan property as his wife only signed as a witness as she had no job and only depended on what he gave her to take care of the children when he travelled out of the country.
According to him, she was only trying to fraudulently take over his property, adding that her claims were vexatious, gold digging and an abuse of court process.
He also asked the court to declare that the receipts of purchase his ex-wife presented were forged and that she should vacate possession of the property which she had refused to give up despite service of statutory seven days owner’s intention to recover possession and perpetual injunction restraining her from occupying the building.
‘Held’
Justice Abimbola, while ruling on the case, held that the landed property at No 7, Fadana Biala Estate, Olodo, Ibadan, together with the three-bedroom flat and uncompleted storey building is jointly owned by the two.
On the second relief that both buildings be sold as requested by Toyin, Justice Abimbola held that, “I will not give such orders in respect of the two buildings. Particularly, Section 17 Married Women Law of Oyo state Cap 83, Laws of Oyo state 2000 gives a court the discretion as it thinks fit on the issues of title of possession to property.
“Section 18 also enjoins the court to treat such property as a joint property if the issue has to do with the maintenance of a matrimonial home.
“My order to this effect is that the completed three-bedroom flat on the land be retained as the matrimonial property and the four children are entitled as beneficial owners by way of a resulting trust created for them by their parents. The mother, as long as she remains unmarried, is directed to be in possession undisturbed in order to take care of her children.
“The uncompleted storey building is ordered to be sold by both parties and the proceeds divided in equal share. The half share shall go to the wife for the maintenance of the children. A divorced wife has no business being maintained,”
Justice Abimbola held.
The court also restrained James from harassing Toyin any further or disturbing the quiet possession of the property by her and the children, holding that, “the rationale is that a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home.
Also, a divorced woman is not entitled to any maintenance allowance but maintenance of the children by way of settlement.”
From the Sriptural point, as stated by a Venerble of the Church of Nigeria ( Anglican Communion) , Ven. Young Nduweze Didia, he said placing divorce and separation divorce side -by -side, it means that the couple ceases to be married legally and what the Lord hat is divorce, God wants husband and wife to live together. Matthew 19:3 – 6 here when the pharisees asked Jesus if it is lawful for a man to divorce his wife Jesus replied to them, thus, ” at the beginning God created man and woman, and said for this reason will a man leaves his father and mother and be united to his wife and the two will become one flesh so they are no longer two but one, therefore what God has joined together let no man separate”.
That he said, is the scripture and the perspective of God concerning marriage let no man separate, even the court has no right to divorce what God has joined together or separate them.
According to him, Moses in Old testament give that law to discourage men from divorcing their wives knowing that the process of this divorce is cumbersome so that men will look at it and will go their way. If you go through all the scripture you will hear Jesus own perspective of divorce and separation he never supported it.
Forgiven each other no matter what’s wrong that is Jesus own stand, Jesus said it was out of your hardness of heart that Moses gave you the law that a man can divorce his wife, but I tell you that you should forgive that’s to show that God does not want divorce or separation, God wants couple live happily again.
Conclusively, lack of trust is the major reason we have divorce and separation. If the couple trust each other there is nothing that they cannot let go and forgive each other, because the Bible made it clear love covers a multitude of sin.
Where there is no love sin abide so God expects us to show love and forgive each other and live together as husband and wife.
Couple should also step up in communicating with each other. This will go along in in healing wounded marriages, which will automatically cut down the growing trending of divorce.

By: King Onunwor