Let’s begin by reminding ourselves that the Nigerian law on marriage and divorce is not our indigenous African law but a foreign one; a British law imposed on us by reason of our colonial past. Yes, that is when we are talking about a marriage you celebrate at a registry or a place of worship, otherwise known as a statutory or English marriage or marriage under the Act. Although our African type of marriage may be more expensive to celebrate, it is quite cheaper and quicker to dissolve. Anyone interested in ending the life of his or her marriage under the African system can do so within a week but that is not the case with marriage under the Act, and for me that is the bone of contention. Can’t we amend this law and make the process much simpler and faster?
I know some Christians reading this piece will be fuming with “holy” anger by now – what’s this person talking about, is he advocating divorce, what’s he trying to say? Does he not know that God forbids divorce?
I agree. These are valid and expected concerns and anybody raising them shouldn’t be blamed or tagged “holier than the Pope”. But such persons should also try to see this issue of divorce from another perspective. A marriage is a sacred institution that should not be handled with triviality. However, when two adults in a marital relationship are convinced that they cannot continue as a couple, the process of ending their union should be made as less cumbersome as possible. I will shortly advance reasons for my stand and support this with reference to the American system of divorce, popularly known as the no-fault system.
As the law stands today in Nigeria, anyone wishing to divorce must state that his or her marriage has broken down irretrievably by relying on a reason or more out of seven reasons in court. The reasons provided for by the law are actually eight but one of these may be regarded as a no-fault basis. This is the one that says, a marriage will be dissolved by a court, even if a spouse opposes the divorce, as long as it is proven that a couple have lived apart for an unbroken period of three years. Mind you, you may still spend three or more months in court even when your case clearly comes under this category and this is one of the things that we need to amend in our divorce law. Where your marriage is dissolved, you still have to wait for another three months before you can re-marry. Why should it be that long to end a marriage? It shouldn’t be more than three weeks or a month to dissolve a marriage in this kind of situation. In fact, I am of the opinion that the only reason we should have for divorce should be the eighth reason with some modification.
Those other seven reasons are these:
1. You may file for divorce, if your spouse doesn’t allow sexual intercourse to take place between both of you since you got married in spite of your requests for it. Now, you have to note that you’re not barred from relying on this reason, even if you’ve had sex before marriage. This is called lack of consummation.
2. If your spouse commits adultery and you have proof, you may file for divorce. Your proof need not be direct but must be believable. Seeing your spouse coming out of a brothel with an opposite sex holding each other in a romantic manner may be a good proof.
3. If your spouse beats, abuses, nags, drinks alcohol excessively, or is financially irresponsible, among others, you may file for divorce. This is called unreasonable behaviour.
4. If your spouse leaves your matrimonial home against your wish and doesn’t return after a year, you may file for divorce. This is called desertion.
5. If you and your spouse live apart for two years, you may file for divorce and a court may grant it provided that the other spouse doesn’t oppose the divorce.
6. If there is a previous order of court reconciling you and your spouse and in spite of the order, your differences persist, you may file for divorce. This is called failure to reconcile.
7. You may file for divorce, if your spouse disappears and cannot be found for a period of seven years. This is called presumption of death.
In spite of all these reasons, you still have to note that you cannot file for divorce within two years of your marriage, except under a few circumstances. For instance, you may be able to file for divorce within two years, if your life is being threatened by your spouse. You should also note that you cannot get your marriage dissolved without approaching a court of law and you have to give oral evidence of what has happened between you and your spouse in an open court-room. This means that you must be physically present in court before your marriage can be dissolved. However, the other spouse who is sued may decide not to attend court.
Now, this is where I’m going – I propose that all these seven reasons should be expunged from Section 15 (2) of the Matrimonial Causes Act where conditions precedents to divorce are contained. The eighth reason, which is living apart for three years, should be amended to living apart for one year and after one year, a marriage should automatically be dissolved, if any of the couple files for divorce.
In the US, for instance, there are just two grounds to file for divorce – living apart for one year and irreconcilable differences. Even though each American state has its divorce law, the grounds for divorce are essentially the same in all the states. Couples do not have to disclose what constitutes “irreconcilable differences” in court because the law does not require them to do so. In other words, the law is not interested in who commits a wrong or who is innocent. Either of them may initiate a divorce suit. This system of divorce is known as no-fault divorce. It makes the process of divorce simple and fast. While this does not mean that many people who wish to keep their marriages are not doing so in the US, it is at least certain that the American system was not designed to discourage divorce which may indirectly force couples to remain together against their wishes in some cases.
This however contrasts sharply with the Nigerian situation. Here, a spouse filing for divorce must state the wrongs or misconduct that the other spouse has committed, making their marriage to break down irretrievably. You may state, for instance, that your spouse has committed adultery and you must prove it in court by giving details of circumstances that inform your allegation against your spouse. Again, a guilty party who is tired of a marriage cannot file for divorce. Can you see how difficult it is to divorce in Nigeria compared to America?
When we complain of rising cases of domestic violence among couples in Nigeria, our difficult process of dissolving a marriage is one of the factors responsible for this. Some couples are frustrated, fed up with their marriage but continue to live together by force because none of them is ready to go to court and wash their dirty linen in public. I know a man who once found himself in this kind of situation. This man accommodated his nephew whose father had passed on in his house and before he knew what was happening, the boy had started “sleeping” with his wife. Anytime he travelled, he would back to hear tales of what his wife and nephew had been doing together from his children. He was disturbed for years before he eventually cried out for help. Divorce remained the only thing he felt could end his agony and yet, he could not face the trauma of narrating his ordeal in a court of law. Some people in this kind of situation end up killing themselves or their spouses.
If you’re still not convinced that our divorce law does more harm than good, this other story will convince you. A young lady was deceitfully taken to the altar by a married man and she didn’t know he was already married until after the birth of their first child. On discovering the truth, she was devastated and cursed the day she met this man but mind you, a legally binding relationship had been created between them, at least in the mind of a legally unschooled woman. What was the way out? She asked her husband to terminate the first marriage, if she would ever allow him touch her. The matter was taken before their church pastor for resolution. Hear how the pastor handled their case – he asked the woman to allow her husband “touch” her so that he would not be driven out to engage in extra-marital affairs because, according to the pastor, it would take four to five years to conclude a divorce case. Hearing that it would take such a long time for her husband to dissolve his first marriage, she allowed him to do with her as a husband to his wife. Today, she has three children for this man who never divorced his first wife and who has abandoned her to take care of the three children for more than six years now.
While it may not take up to four or five years to dissolve a marriage in Nigeria, the fact that it is a lot difficult to achieve a divorce in our country encourages people like the woman’s pastor to blow things out of proportion. The only way out is to relieve couples of the need to disclose reason(s) for wanting a divorce in court and this will inevitably help to reduce time spent in court to end a marriage.
Changing the Nigerian divorce law may not, in itself, make every marriage experience divorce but it will prove to us that couples who continue to stay together as husband and wife truly love themselves, and not because of a cumbersome divorce process forcing them together. A change in the law will also reduce spousal abuses. When couples are happy, there will be happy homes. Happy homes will in turn produce happy children who will build a Nigeria of our dream.
*Kehinde Adegbite, a Ibadan-based legal practitioner is author of the book, What the Law Says About Marriage and Divorce: Answers to All Your Questions.
Credit: Kehinde Adegbite, Premium Times