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Oluchukwu Divine

What is the process of divorce?

Family MattersAsked - May 16 2017, 01:28 PM

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Reply by Kayode Okunade Esq (Lawyer)

Let me start from here; If you want a divorce, you file your petition with the court seeking a divorce. The divorce must be based on the ground 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 consummation of the marriage. 2. Adultery. 3. Conduct that is unreasonable (rape, bestiality, habitual drunkard, sodomy, murderer, incarcerated (in prison), attempted murder of a 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 asks 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. What Law Governs? Matrimonial Causes Act Chapter 220, section 15 & 16 Laws of the Federation of Nigeria 1990 Dissolution of marriage 15. (1) A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably y. (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- (Folks note you must satisfy one or more of the factors below): (a) that the respondent has wilfully and persistently refused to consummate the marriage ; (this means he or she is not giving you sex). (b) that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (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 ; (d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition ; (Abandonment – many Nigerian relationships qualify for this, especially the foreign ones where the couple marry and he or she heads to Nigeria and remain there with no communication, companionship etc. whatsoever) (e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted; (f) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition; (g) that the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act; (h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead. (3) For the purpose of subsection (2) (e) and (f) of this section the parties to a marriage shall be treated as living apart unless they are living with each other in the same household. SECTION 16 Shows how you Meet the Burdens in Section 15 16. (1) Without prejudice to the generality of section 15(2)(c) of this Act, the court hearing a petition for a decree to of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15(2)(c) of this Act if the petitioner satisfies the court that- (a) since the marriage, the respondent has committed rape, sodomy, or bestiality; or (b) since the marriage, the respondent has, for a period of not less than two years- (i) been a habitual drunkard, or (ii) habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has, for a part or parts of such a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated; or (c) since the marriage, the respondent has within a period not exceeding five years- (i) suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years, and (ii) habitually left the petitioner without reason- able means of support; or (d) since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence puni

Posted - May 16 2017, 04:16 PM

Reply by Kayode Okunade Esq (Lawyer)

Our Marriage is meant to foster a lasting relationship between two intending couples. However, for one reason or the other, things might not work out as planned and you have a change of heart. Then the issue of divorce sets in. Divorce should however be the last resort. You might wonder, if I want it, how do I file for divorce in Nigeria? Let us go through step by step: Filing a petition The first step according to law requires the filing of a petition by a party to the marriage for a decree of dissolution of the marriage presented to the court. But the marriage must have broken down irretrievably. This means that the petitioner and respondent have reached a point where they can no longer bear to live with one another as lawfully wedded husband and wife. The court upon receipt of the petition will verify that one or more of the following applies to the married party: That either party has willfully and persistently refused to consummate the marriage That either of the married party has committed adultery and the partner can no longer tolerate his/her partner That either party can no longer tolerate the behavior of the second party That either of the married party has been abandoned for up to one year from the day the petition was filed That both parties have been living apart for a period of two or three years from the day the petition was filed and have no objection with regards to the dissolution That either party has failed to comply with restitution of conjugal rights for at least a year That either party of the married couple has been missing for such a long time and has thus been presumed dead. These are the conditions required by law before filing a petition for divorce. Meeting the Court Requirement After filing a petition, the court will also carry out an assessment of the situation and determine if the petitioner has been afflicted with a number of situations. At this stage, the court would however ensure that one or more of the conditions stated above have been met by the petitioner. The scenarios that are considered for a divorce include cases in which the second party orrespondent has been in involved in the following: Rape, sodomy, or bestiality Habitual drunkenness Frequent convictions for crime in respect of which the respondent has been sentenced and imprisoned for a period not less than three years, Failure to pay maintenance for the petitioner An attempt to murder or unlawfully kill the petitioner Found to be of unsound mind and unlikely to recover Once the court determines the presence of any of the above situations, the petitioner is granted the right to divorce the respondent and other things such as settlements and child custody issues where applicable will then be sorted out.

Posted - May 16 2017, 04:45 PM

Ejiro

The process of divorce is dependent on the process the marriage was contracted. If done traditionally (only), then a return of the bride price by the brides family. If its a marriage under the Act (court marriage), then the marriage can only be dissolved by a competent court. The party seeking the divorce must file a petition under the matrimonial causes Act.

Posted - May 17 2017, 01:24 PM

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