Introduction
Knowledge of when to file for divorce in Nigeria is very important. Filing a petition for divorce at the right time can significantly impact the outcome of your case. This guide explores the key factors and timing considerations for filing for divorce in both statutory and customary marriages, helping you make informed decisions and avoid common pitfalls. For more insights, you might also find our articles on adultery and divorce, barriers to divorce, and filing for divorce without a marriage certificate helpful.
When to File for Divorce in Statutory Marriage in Nigeria
In Nigeria, the High Court in each state and the High Court of the Federal Capital Territory, Abuja has the authority to handle divorce petitions. This is as provided in Section 2 of the Matrimonial Causes Act (MCA). Though you can present a divorce petition at any High Court or the High Court of Federal Capital Territory, Abuja, but there are specific rules you must follow.
The Two-Year Rule
According to Sections 30(1) and 30(2) of the Matrimonial Causes Act (MCA), you cannot file for divorce within the first two years of your marriage except in exceptional circumstances or with court’s permission. The essence of this rule is to encourage couples to work through early marital challenges and avoid hasty decisions.
However, there are exceptions to the above rule which permits for filling a petition for dissolution of a statutory marriage where the marriage is less than two years old. These exceptions are as follows:
(a) Where the respondent has wilfully and persistently refused to consummate the marriage;
(b) Where the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent;
(c) Where the respondent has committed rape, sodomy, or bestiality since the marriage.
For cases outside these exceptions, you may file for divorce before the two-year period, but you must obtain the court’s permission. To do so, you need to file a motion ex parte (this type of motion, unlike motion on notice is not served on the respondent) explaining that you have suffered exceptional hardship and depravity in the marriage. The court in Fay v. Fay 1defined “exceptional” as serious conduct beyond the ordinary, such as concealed homosexuality, as seen in C v. C.2
When seeking court permission, the court will consider the interests of any children from the marriage and whether reconciliation is possible. Additionally, Order IV, Rule 4 of the Matrimonial Causes Rules (MCR) requires that a copy of the court’s permission must be served with the divorce petition.
Legal Implications of Not Obtaining Court Permission
Unless a petition for divorce in a statutory marriage of less than two years is based on one of the mentioned exceptions, the petitioner must obtain court permission before instituting the petition. Failure to obtain this permission or leave of court is a material defect that negatively affects the court’s jurisdiction to entertain the petition. For instance, in the case of Ezeabagbulem vs. Ezeabagbulem3 a case where the marriage lasted less than two years and the husband filed for divorce without obtaining the leave of court, the petition was struck out after the respondent challenged the court’s jurisdiction on the ground that petitioner failed to obtain court permission before filing the petition for divorce.
More so, it is important to note that striking out a petition for not obtaining court permission does not bar or prevent the petitioner from reinstituting the divorce petition.
When to File for Divorce in Customary Marriage
In customary marriages, there are no statutory time restrictions for filing for divorce. You can file for divorce at any time. Additionally, customary marriages can often be dissolved extrajudicially by refunding the bride price. While the dissolution process usually involves the customary court, the flexibility in timing allows individuals to end their marriage without a fixed period.
Conclusion
Understanding when to file for divorce in Nigeria is essential for ensuring a successful legal process. For statutory marriages, the two-year rule provides a structured approach with specific exceptions for serious issues. Customary marriages offer greater flexibility in timing. By being informed about these rules and procedures, you can navigate your divorce process more effectively. For more inquiries or personalized advice, feel free to contact us for assistance.
Disclaimer
This article provides general information about divorce procedures in Nigeria and is not a substitute for legal advice. For advice specific to your situation, consult with a qualified legal professional.
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