by Ayokunle Odekunle
By virtue of Section 30(1) of the Matrimonial Causes Act, no proceeding for the dissolution of a marriage may be instituted within two years of the marriage.
Adimeru, a go-happy, hippy young man based in Lagos met Anire, a Ghana-trained Human Resources practitioner. They saw one or two times and many things happened in those one or two times. In one of their encounters, it ‘rained’ and they failed to protect themselves. While Adimeru FAILED/REFUSED to use an umbrella or raincoat, Anire failed to wear a ‘cardigan’. She got wet as a result. Trust Adimeru, his thrusts were trustworthy. He went in hard and she happily received his showers of blessing. She promised to ‘cum’ for more.
Rather fortunately or unfortunately, she got pregnant.
Adimeru’s parents got to know and they told him he had to marry Anire. “We don’t have children out of Wedlock in our family. Anyone who tries that will be struck by Ayelala”, they chorused. So he had no choice but to marry Anire- A girl he has/had no feelings for.
They got married at Christ Apostolic Church, Agbala Itura. Instead of marrying into conjugal bliss, their welcome into hell was formalized. Two un-compatible persons living together as man and wife? Nothing worked! Adimeru could not bear waking up to seeing Anire’s face first thing every morning. It was just 4 months into their marriage and it seemed like eternity in hell. He needed an escape route. He needed a divorce.
He approached the Law firm of Oga De Law & Sons and instructed them to commence divorce proceedings against his wife. He told the Law firm that since he got married in a Church, the marriage is a customary weddings and so, the matter should be settled at a Customary Court which he reckoned will be easier
- What kind of marriage was contracted between Adimeru and Anire?
- What are the grounds for divorce?
- Can Adimeru and Anire get divorced as they have been married for just under 2 years?
Basically the laws that govern matrimonial proceedings are the Marriage Act, Matrimonial Causes Act Cap. M7 Laws of the Federation of Nigeria and Matrimonial Causes Rules 1983. The Matrimonial Causes Act applies only to monogamous marriages contracted under the Act or declared to be valid under the Act.
It is Adimeru’s contention that since he got married in the church, the marriage doesn’t qualify as a statutory marriage. How true is this?
There is a difference between a statutory marriage and a church marriage. A church marriage is NOT NECESSARILY a marriage under the Act. The fact that a marriage was celebrated in a church does not constitute a marriage under the Act. Such a marriage must comply with the requirements of the Act to be a statutory marriage. Simply put, a church marriage without more is a customary marriage.
In the case of Nwangwa v Ubani  10 N.W.L.R. pt 526, p. 559, the Court of Appeal held that the mere celebration of a marriage in a church as was done in the case does not confer statutory flavour to the marriage. The Court further stated that in order to convert a customary marriage into a statutory law marriage the parties must CONSCIOUSLY take steps and adopt the procedure contained in the marriage Act (A condition is Production of licence from the Registrar, etc).
There have been a number of contested cases in Nigerian Courts as to whether marriages contracted in Church without a Registrar’s licence are null and void. In Obiekwe V. Obiekwe, a marriage solemnized in the Holy Ghost Roman Catholic Church Enugu was not declared null and void because the Court found that the couple did not knowingly and willfully acquiesce in the marriage without the requisite licence. The Learned Judge made the following remarks:
“A good deal has been said about “Church marriage” or marriage under Roman Catholic Church Law”. So far as the law of Nigeria is concerned, there is only one form to monogamous marriage, and that is marriage under the Ordinance. Legally a marriage in a Church (of any denomination) is either a marriage under the Ordinance or it is nothing”
In another celebrated case, Anyaegbunam V. Anyaegbunam, the Supreme Court declared where there is a dispute as to whether a Church service is a service of marriage or a Church blessing of a marriage, the “Certificate of Marriage” issued by the Church would not be evidence of marriage unless it can be shown that the required licence of the Registrar of Marriages was produced and the certificate was in the form prescribed by the Marriage Act. In this case, the Court ruled in favour of the husband that the Church ceremony was a mere blessing of marriage, and not a marriage under the statute.
In the case of Adimeru and Anire, though they got married in a church, they took steps to ensure that the marriage is a statutory marriage as they have the licence from the registrar of marriages. The marriage therefore is governed by the Marriage Act and can only be dissolved by a State High Court. NOT a customary court as opined by Adimeru.
To divorce Anire, Adimeru will have to file a petition at Lagos State High Court (since they are both domiciled in Lagos). For the divorce petition to succeed Adimeru must prove to the Court that the marriage has been broken down irretrievably. What does irretrievably mean? The court will consider eight different grounds under the act highlighted below.
1. No sex i.e. no consumation of the marriage.
3. Conduct that is unreasonable (rape, bestiality, habitual drunkard, sodomy, murderer, incarcerated (in prison), attempted murder of spouse, intent to or actual commission of serious bodily injury, inability to take care of spouse).
4. Abandonment ( must be at least one year prior to the filing of the divorce petition).
5. Separation (living apart for a continued period of two years prior to the filing of the divorce petition) and no objection by the person you want to divorce from. So, you file for a divorce, the court says how long have you been apart, you say two years. The court ask your spouse whether he/she will object to the divorce and he/she says , “no.”
6. Separation (living apart for a continued period of three years prior to the filing of the divorce petition).
7. Failure to comply with a court order regarding marriage or the sexual rights or privilege of a marriage.
8. Death/Reason to Believe Spouse is Dead.
Unless Adimeru can prove that the marriage has broken down and that no force in heaven or earth can save his marriage to Anire, the Courts will not grant a divorce.
So now that Adimeru wants to get a divorce from Anire even though they have been married under just 1 year, is it possible? The Laws thinks not. By virtue of Section 30(1) of the Matrimonial Causes Act, no proceeding for the dissolution of a marriage may be instituted within two years of the marriage.
There is however a way out.
Adimeru who wants to get out of his bad marriage with Anire will have to seek leave of Court (Special Permission) to file his divorce petition. He must however prove EXCEPTIONAL circumstances to warrant the Court to grant him leave to file his petition. In other words, Adimeru has to prove to the Court that there are exceptional and pressing reasons why he should be allowed to file his petition. These exceptional circumstances are
- Exceptional Hardship
- Exceptional depravity on the part of the other party
What are exceptional circumstances? In Akerele v. Akerele (1962) W.N.L.R. 328, the respondent (Mr. Akerele) was accused by his wife of inordinate sexual demands when the applicant (Mrs. Akerele) was in very poor health. He was also charged with adultery and infecting his wife with venereal disease. The Court held that this was a case which could conveniently qualify as an ‘exceptional circumstance’. Leave was granted to the Applicant to file her divorce petition even though, the the marriage was under 2 years.
In Majekodunmi v. Majekodunmi (1966) A.N.L.R. 324, the couple were married for just under 2 years. The wife however applied for leave to file a divorce petition on the ground that she became pregnant for her husband before the marriage and that since the marriage, they have not lived together and that her request for a matrimonial home was always put off by her husband who had in fact never supported her and her child. She also accused her husband of adultery from which he now had another child. Also, her husband had only on one occasion had sex with her and whenever she begged him for sex, he chased her away. Leave was granted to the Petitioner.
To seek leave of Court, the petitioner has to come to Court by way of Motion Exparte with an Affidavit setting out the particulars of the exceptional hardship and depravity.
In the instant case, Adimeru CANNOT file a motion for leave to divorce his wife since he cannot claim he has suffered exceptional hardship or depravity. He might have to wait for after the marriage is way over 2 year to file his divorce petition and by then, he has to prove that the marriage has broken down irretrievably to warrant its dissolution by the Courts.
I have been inundated by calls from friends who tell me how miserable they are in their marriages and how they want to find an escape route. Most of the complainants have being married for just under 2 years. My advice is that people should take their time before getting married and get to know their partner well before signing the dotted lines.
Divorce proceedings are messy as it is a laundry. You see erstwhile happy couples washing their dirty lingeries in the Court; saying things they should never say. A classic example is the divorce proceeding between Former Minister for Health Dr. Timothy Menakaya and his former wife Ann Okuchukwu Menakaya. These kind of proceedings have everlasting effects on their children and generations to come ( A good example are the Akerele and Majekodunmi cases I cited).
The message here is simple: THINK BEFORE GETTING MARRIED!
Ayokunle Odekunle is a Legal Practitioner, Chartered Arbitrator, Editor and Social Media commentator. He is a graduate of the University of Ibadan where he was The Most outstanding Personality in the school (2011) and the Nigerian Law school, Lagos. He is presently an Associate in one of the biggest Law firms in the country as well as an Editor with the most popular Internet Newspaper in Nigeria. He tweets from @Oddy4real
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.