Adultery and Divorce in Nigeria: Is It a Crime, How Is It Proved and Can You Claim Damages?

Reviewed on 8 October 2026

In most of Nigeria, adultery is not a crime. In a statutory marriage, however, it is one of the facts on which a court may dissolve the marriage. The petitioner must prove that the respondent committed adultery and that the petitioner finds it intolerable to live with the respondent. The petitioner may also claim damages from the person with whom the adultery was committed, subject to strict conditions in the Matrimonial Causes Act.

This article explains when adultery is an offence, what adultery means in law, how the courts infer it from the evidence, why the other person must usually be joined in the petition, and when damages may be awarded.

Is Adultery a Crime in Nigeria?

The answer depends on where you are and which law applies to you.

In the southern States, adultery is not a criminal offence. The Criminal Code, which applies there, creates no offence of adultery, and the Constitution provides that no person may be convicted of an offence unless it is defined, and its penalty prescribed, in a written law.¹ The Court of Appeal has also observed that adultery per se is not a crime, and that proceedings concerning it in a divorce case are civil.²

In the northern States, the Penal Code makes adultery an offence, but only for a person subject to a native law or custom that recognises extra-marital sexual intercourse as a criminal offence.³ Several northern States have also enacted Sharia penal laws that apply to Muslims.

For most married people in southern Nigeria, therefore, adultery has civil consequences rather than criminal ones.

What Is Adultery?

The Court of Appeal has described adultery as consensual sexual intercourse between a married person and a person of the opposite sex other than the spouse. There must be some penetration, although the act need not be completed.⁴ Three elements must be established:⁵

1. There was sexual intercourse.
2. The intercourse was voluntary.
3. One of the parties was married.

Because the intercourse must be voluntary, a spouse who was raped has not committed adultery. Sexual conduct that falls short of intercourse may still support a petition, but it would ordinarily be pleaded as behaviour rather than adultery.

Adultery as a Fact That Could Give Rise to Divorce

The only ground for dissolving a statutory marriage is that the marriage has broken down irretrievably. The petitioner proves irretrievable breakdown by establishing one of the facts listed in the Act, which are explained in our article on the grounds for divorce in Nigeria. One of those facts is that, since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.⁶ Both parts must be proved, and both must relate to the period after the marriage.⁷

These provisions apply to statutory marriages only. A marriage contracted solely under native law and custom is governed by customary law, which treats adultery according to the relevant custom. See our guide to customary marriage in Nigeria.

How Is Adultery Proved in a Nigerian Divorce Case?

Adultery is proved to the reasonable satisfaction of the court, not to the criminal standard of proof beyond reasonable doubt.⁸ Direct evidence is rare, so the court usually infers adultery from the conduct of the parties and the surrounding circumstances.⁹ The circumstances the courts have accepted include the following:

1. Familiarity combined with opportunity. Closeness between two people is not enough on its own. There must also be evidence that they had the chance to commit adultery. The Supreme Court drew the inference where the two people, who were clearly attached to each other, were found embracing in the early hours after several hours together that neither could account for.¹⁰
2. Suspicious circumstances. In one case, a husband called at night at the separate home of his wife, found her scantily dressed in a darkened bedroom with another man whose clothing was in disarray, and the court held that adultery was proved.¹¹
3. The birth of a child. A child born during the marriage, of whom the other spouse is not a parent, allows the court to infer adultery. In Alabi, the husband had a son by another woman eight months after the wedding.¹²
4. Admissions. A wife’s statement in a court document naming another man as her child’s father has been treated as an admission of adultery.¹³ A confession, however, is evidence only against the person who makes it. It does not prove adultery against the co-respondent.¹⁴
5. Frequenting hotels with strangers. Evidence that a spouse regularly went to a hotel with strangers formed part of the proof of adultery in a Supreme Court case.¹⁵
6. Venereal disease. A spouse who contracts a venereal disease not caught from the other spouse may be presumed to have committed adultery, although the presumption can be rebutted.¹⁶
7. A conviction for rape. Evidence that a spouse was convicted, after the marriage, of rape or another offence involving sexual intercourse is evidence of adultery with the victim.¹⁷

The evidence is weighed as a whole. In Erhahon, photographs of the respondent and another person sitting and lying on a bed were held not to be sufficient proof of intercourse.¹⁸ A single suspicious fact is rarely enough. A pattern supported by documents, messages, witnesses or a child’s birth record is much stronger. Where a child’s paternity is in issue, see our article on proving paternity without a DNA test.

Must the Adultery Be the Reason the Marriage Is Intolerable?

No. The two parts of the provision are treated as independent of each other. The petitioner must prove the adultery and must also prove that he or she finds it intolerable to live with the respondent, but does not need to show that the adultery caused the intolerability.¹⁹ The test is subjective. The question is whether this petitioner genuinely finds it intolerable, not whether a reasonable person would.²⁰

Condonation

A decree of dissolution shall not be made if the petitioner has condoned the conduct relied upon.²¹ Condonation means forgiving the adultery with knowledge of it, usually shown by reconciling and continuing to live together as husband and wife. See our article on barriers to divorce in Nigeria.

What If the Petitioner Also Committed Adultery?

A petitioner who has committed adultery since the marriage may still seek a divorce. However, he or she must file a discretion statement that discloses the adultery and asks the court to grant the decree notwithstanding it. The statement is filed sealed, and it is not open to general inspection.²²

Joining the Co-Adulterer in Divorce Cases

Where a petition alleges that the respondent committed adultery with a specified person, that person must be made a party to the proceedings, except as provided by the rules of court.²³ The person joined is called the co-respondent. The Court of Appeal has held that joining the alleged adulterer is a condition precedent to the court’s jurisdiction.²⁴ The rules provide four exceptions:²⁵

1. The person is dead. The petition must state that fact and the date of death.
2. The person is under fourteen. That person is served but not made a party, although he or she may choose to intervene.
3. The person is an infant with whom incest was committed. Such a person is not made a party.
4. The person’s name is unknown. The petitioner must obtain an order dispensing with naming the person before the petition can be set down for trial. If the name later becomes known, the petition must be amended.

A co-respondent may apply to be dismissed from the proceedings if the evidence does not establish adultery against him or her.²⁶

Can I Sue the Person Who Slept With My Spouse?

Under the Matrimonial Causes Act, the claim is made against the co-respondent within a petition for dissolution of the marriage, not as a separate action. Either spouse, husband or wife, may claim damages from the person who committed adultery with the other spouse.²⁷

The claim cannot be made in a petition for judicial separation, because the statutory right to damages is confined to petitions for dissolution.²⁸ The amount claimed must be stated in the petition.²⁹

Damages for Adultery in Divorce Cases

The court will not award damages:³⁰

1. where the adultery has been condoned, even if it was later revived;
2. where the decree of dissolution is not based on that adultery; or
3. for an act of adultery committed more than three years before the petition was filed.

The three-year limit applies to each act. The Supreme Court has held that damages may be awarded for adultery within the three-year period even if it forms part of an association that began earlier.³¹ The Court of Appeal applied the same principle in Alabi.³²

Damages for adultery are not compensatory in the ordinary commercial sense. The court may consider the injury to the petitioner’s honour, the harm to family life and the hurt to the petitioner’s feelings.³³ The courts have also declined to award damages where the co-respondent did not know, and had no reason to know, that the person was married.³⁴ The court may direct how any damages are to be applied, including for the benefit of the children of the marriage.³⁵

Frequently Asked Questions

Is adultery a crime in Nigeria?
Not in the southern States, where the Criminal Code applies. In the northern States, the Penal Code makes it an offence only for persons subject to a native law or custom that treats it as one. Adultery should not be confused with bigamy, which is a separate offence.

Can I sue the woman sleeping with my husband?
In a statutory marriage, you may claim damages against her within your divorce petition, subject to the limits in section 31 of the Matrimonial Causes Act. You cannot claim damages if she did not know, and had no reason to know, that he was married.

Are photographs or chats enough to prove adultery?
Not always. The court looks at all the circumstances, including familiarity, opportunity and the conduct of the parties. In Erhahon, photographs of the parties on a bed were held insufficient on their own.

If I forgave my spouse, can I still divorce on the ground of adultery?
Generally not on that same adultery, because condonation bars a decree. Later adultery, or another fact under section 15(2), may still support a petition.

I also committed adultery. Can I still file for divorce?
Yes, but you must disclose it in a discretion statement filed under the Matrimonial Causes Rules.

Conclusion

In most of Nigeria, adultery is a civil matter rather than a crime. In a statutory marriage it may support a petition for divorce, provided the petitioner proves the adultery and that he or she finds it intolerable to live with the respondent, and has not condoned it. The other person must usually be joined, and any claim for damages against him or her must be made within the petition and within the limits of section 31.

Because adultery cases turn on the quality of the evidence, have it reviewed before you file. You can book a legal consultation, or read about our work as a divorce lawyer in Nigeria.

This article provides general legal information only and is not legal advice on any individual case.

About the author: Ebelechukwu Aroh-Nwoka is the Principal Attorney of Ebelechukwu Law Firm in Anambra State. She practises family, property and succession law, advising Nigerians at home and abroad.

Footnotes

[1] Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(12). ↩

[2] Erhahon v Erhahon (1997) 6 NWLR (Pt 510) 667, 687. ↩

[3] Penal Code (applicable in the northern States). The relevant provisions of the Penal Code Law of the State concerned should be consulted. ↩

[4] Erhahon (n 2) 687. ↩

[5] Alabi v Alabi (2007) 9 NWLR (Pt 1039) 297, 356. ↩

[6] Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria 2004, s 15(1) and (2)(b). ↩

[7] EI Nwogugu, Family Law in Nigeria (3rd edn, HEBN Publishers 2014) 178. ↩

[8] Matrimonial Causes Act (n 6) s 82(1); Erhahon (n 2) 681, 687. ↩

[9] Nwogugu (n 7) 179. ↩

[10] Akinyemi v Akinyemi (1963) 1 All NLR 340, as discussed in Nwogugu (n 7) 180. ↩

[11] Adeyemi v Adeyemi (1969) 2 All NLR 181, as discussed in Nwogugu (n 7) 180. ↩

[12] Alabi (n 5) 356–357; see also Nwogugu (n 7) 180–181. ↩

[13] Megwalu v Megwalu (1994) 7 NWLR (Pt 359) 718, as cited in Nwogugu (n 7) 181. ↩

[14] Nwogugu (n 7) 181. ↩

[15] Adeyinka v Ohuruogu (1965) 1 All NLR 210, as discussed in Nwogugu (n 7) 182. ↩

[16] Alabi (n 5) 356; Nwogugu (n 7) 182. ↩

[17] Matrimonial Causes Act (n 6) s 87(1)(a); see also Nwogugu (n 7) 181. ↩

[18] Erhahon (n 2) 687. ↩

[19] Labode v Labode (1972) 2 CCHCJ 107, as discussed in Nwogugu (n 7) 182, where the author notes that Nigerian courts have followed the approach of the English Court of Appeal on this point. ↩

[20] Nwogugu (n 7) 182–183. ↩

[21] Matrimonial Causes Act (n 6) s 26. ↩

[22] Matrimonial Causes Rules, Order XI rr 28–32; Nwogugu (n 7) 183–184. ↩

[23] Matrimonial Causes Act (n 6) s 32(1). ↩

[24] Ebe v Ebe (2004) 3 NWLR (Pt 860) 215, 234–235. ↩

[25] Matrimonial Causes Rules, Order IX rr 3–7; Ebe (n 24) 235; Nwogugu (n 7) 183. ↩

[26] Matrimonial Causes Act (n 6) s 32(3). ↩

[27] Matrimonial Causes Act (n 6) s 31(1). ↩

[28] Bamgbala v Bamgbala (1976) 5 CCHCJ 1431, as discussed in Nwogugu (n 7) 184–185. ↩

[29] Nwogugu (n 7) 187, citing Matrimonial Causes Rules, Order XIV r 4(3). ↩

[30] Matrimonial Causes Act (n 6) s 31(2) and (3). ↩

[31] Williams v Williams (1974) 1 All NLR 504, 511, as discussed in Nwogugu (n 7) 185. ↩

[32] Alabi (n 5). ↩

[33] Alabi (n 5) 344. ↩

[34] Adeyinka (n 15); Adenipekun v Adenipekun (1974) 4 ECSLR 605, both as cited in Nwogugu (n 7) 187. ↩

[35] Matrimonial Causes Act (n 6) s 31(4); Nwogugu (n 7) 185. ↩