What divorce means
Divorce ends a marriage, and only a court can do it.
Separating, moving out, or agreeing between yourselves that the marriage is over changes nothing legally. Until a decree is granted, both parties are still married, and that has consequences for property, for inheritance and for the ability to marry somebody else.
Under the Matrimonial Causes Act, which governs statutory marriages, there is one ground: that the marriage has broken down irretrievably. But you cannot simply assert that. You have to prove it by establishing at least one of the facts the Act lists, and the court then decides whether the breakdown is made out.
A decree comes in two stages. The court first grants a decree nisi, and after the period the law provides that becomes a decree absolute. The marriage is over at the second stage, not the first, and remarrying before the decree absolute is a serious mistake.
How it is used
The facts that can prove irretrievable breakdown are set out in the Act, and a petition has to rest on at least one.
They include wilful and persistent refusal to consummate the marriage, adultery which the petitioner finds intolerable, behaviour such that the petitioner cannot reasonably be expected to live with the respondent, desertion for at least one year, living apart for at least two years where the respondent does not oppose the decree, living apart for at least three years, and failure to comply with a decree of restitution of conjugal rights.
The petition is filed at the High Court. The respondent may answer, and where children, property or maintenance are in issue those are dealt with in the same proceedings or alongside them.
A great deal is settled rather than fought. Where the parties can agree on custody, maintenance and property, a settlement agreement records it and the court is asked to reflect it, which is quicker, cheaper and far less damaging to everyone involved.
Key features
- One ground: irretrievable breakdown of the marriage
- Proved by one of the facts listed in the Matrimonial Causes Act
- A petition generally cannot be filed within two years of the marriage without leave of the court
- Granted in two stages, decree nisi followed by decree absolute
- Custody, maintenance and property are dealt with alongside the divorce
- Applies to statutory marriages, with separate routes for customary and Islamic marriages
How this works in Nigeria
Which court and which law you are in depends entirely on how you married.
A statutory marriage, contracted at a marriage registry or a licensed place of worship, is dissolved by the High Court under the Matrimonial Causes Act. That is the process described here.
A customary marriage is dissolved under the customary law of the relevant community, through the customary court, and the requirements differ between communities, commonly including the return of bride price.
An Islamic marriage is dissolved under Islamic law, in the Sharia courts of the states applying it.
Many Nigerian couples marry twice, traditionally and then at a registry. Where both took place, dissolving one does not dissolve the other, and this catches people out. If you contracted a statutory marriage, you need a decree from the High Court however the traditional side was resolved.
The two year rule also surprises people. A petition generally cannot be presented within two years of the marriage without the leave of the court, which is granted only in limited circumstances such as exceptional hardship or depravity.
Divorce vs judicial separation vs nullity
Three different orders, and they do not achieve the same thing.
Divorce ends a valid marriage. Once the decree is absolute, both parties are free to remarry.
Judicial separation relieves the parties of the duty to live together but leaves the marriage in existence. It is sometimes chosen for religious reasons or where a party is not ready to end the marriage, and neither party may remarry.
Nullity declares that there never was a valid marriage, either because it was void from the start or because it is voidable. Grounds include an existing marriage at the time, prohibited degrees of relationship and lack of consent.
People occasionally assume a marriage of very short duration can simply be annulled. Nullity depends on a defect in the marriage itself, not on how briefly it lasted, so a short unhappy marriage is usually a divorce case rather than a nullity case.
Limits and risks
Divorce ends a marriage. It does not automatically resolve everything that came with it.
Property is the hardest part. Nigerian courts look at legal ownership and at contributions, and a spouse whose name is on nothing and who cannot evidence financial contribution can find themselves in a difficult position however long the marriage lasted.
Custody is decided on the welfare of the child, not on who petitioned or who was at fault, and a parent who assumes fault determines custody is usually disappointed.
Proceedings also take time. A defended petition can run for a long while, and the emotional and financial cost of fighting every issue is generally higher than the value of what is being fought over.
And a decree nisi is not the end. Until it is made absolute the parties are still married.
Worth knowing
Gather your documents before anything else: the marriage certificate, evidence of what each of you contributed to property, and records of income. Nigerian divorce outcomes on property and maintenance turn heavily on what can be evidenced, and the documents get much harder to obtain once the other party knows a petition is coming.
Questions people ask
What are the grounds for divorce in Nigeria?
There is one ground, that the marriage has broken down irretrievably, proved by one of the facts in the Matrimonial Causes Act. These include adultery, behaviour the petitioner cannot reasonably be expected to live with, desertion for a year, and living apart for two or three years depending on consent.
How long does a divorce take in Nigeria?
An uncontested petition where the parties agree on custody, maintenance and property moves considerably faster than a defended one, which can run for a long period. The decree nisi must also be made absolute before either party can remarry.
Can I divorce within two years of marriage?
Generally not without the leave of the court. The Matrimonial Causes Act restricts petitions within the first two years, and leave is granted only in limited circumstances such as exceptional hardship or depravity.
How is a customary or Islamic marriage dissolved?
A customary marriage is dissolved under the relevant customary law through the customary court, often involving return of bride price. An Islamic marriage is dissolved under Islamic law in the Sharia courts of states applying it. Neither is dissolved by the High Court process.
We married traditionally and at the registry. Do I need both dissolved?
If you contracted a statutory marriage at a registry or licensed place of worship, you need a decree from the High Court. Resolving the traditional side alone does not end the statutory marriage.
Who gets the property in a Nigerian divorce?
The court looks at legal ownership and at the contributions each party made. Being married does not by itself give an automatic share, so evidence of financial and other contributions matters a great deal.