A divorce petition is a formal legal document that one spouse submits to a court, seeking the dissolution of their marriage. This petition is considered the formal beginning of the divorce process. In Nigeria, divorce proceedings for statutory marriages are primarily governed by the Matrimonial Causes Act, Laws of the Federation of Nigeria, 2004.
Key Parties in a Divorce Petition
A divorce petition has:
- Petitioner – The party that applies for the divorce.
- Respondent – The party against whom the divorce is filed.
- Co-Respondent – Where the ground for divorce is adultery, the third party alleged to have engaged in improper relations with the respondent is joined in the petition as a co-respondent.
Jurisdiction for Divorce in Nigeria
Divorce petitions for statutory marriages are, therefore, filed in the High Court of any State or FCT, Abuja. Since Nigeria is a single jurisdiction in relation to divorce, the petition can be technically filed in any High Court in the country as long as the petitioner is domiciled in Nigeria.
However, for practical and procedural reasons, it is advisable to file the petition in a court within or close to the state where either the petitioner or the respondent resides. For instance, it would be inappropriate for a petitioner residing in Lagos State to file for divorce in Kano State simply because Nigeria is one jurisdiction.
Basic Requirements of a Divorce Petition
A well-prepared divorce petition will contain the following:
- Notice of Petition – A formal notice that court action in divorce has been instituted.
- The Petition for the Dissolution of Marriage – This contains:
- The ground for the divorce, which states that the marriage has irretrievably broken down.
- Supportive facts, for example, adultery, desertion, cruelty, or any other legally recognized ground for dissolution.
- Key details of the marriage, such as the date and place of marriage, the birth details of both spouses, residence, and any period of cohabitation.
- Children of the marriage, including arrangements relating to custody, maintenance plans, and property settlement.
- Particulars of the specific reliefs or orders which the petitioner is seeking, whether as to custody, division of property, or financial provision.
- Verification – An affidavit that the contents in the petition are true.
- Certificate Relating to Reconciliation – A document confirming whether attempts at reconciliation have been made or are unlikely to succeed.
- Acknowledgment of Service – a form confirming the respondent has been served the petition.
The Procedure for Divorce in Nigeria
The dissolution of marriage is preceded by a carefully regulated legal process:
- Filing of Divorce Petition
The petition is submitted to the High Court Registry, where it is allocated a suit number, and the matter is assigned to a judge.
- Service of the Divorce Petition
Once filed, the petition must be served upon the respondent by the bailiff of the court. The respondent is given 28 days to file an Answer or Answer and Cross-Petition in case he wishes to contest the divorce or puts forth his claims.
If personal service is not possible, then the court may give alternative service as:
- By means of email service
- Service by posting the petition on the respondent’s last known address
If the respondent files an Answer or Answer and Cross-Petition, the petitioner may file a Reply to Answer or Reply to Answer and Answer to Cross-Petition, whichever applies.
- Court Hearings
If the respondent files a response, the court will then set the matter for hearing, which may be:
- Compulsory Conference (Mediation) – If the marriage is with children (children below 18 years) or if there are issues regarding the division of properties, then the court will force the two parties to mediate between themselves. Failure to come to a consensus, the judge decides on behalf of the couple.
- Trial – If the mediation is unsuccessful or if not applicable, then the case goes to trial. In the Trial:
- Both spouses may present evidence and call witnesses in case the respondent contests the divorce.
- On failure of the respondent to file an answer, evidence presented by the petitioner shall be taken as uncontroverted, and the respondent loses the right to testify.
- Judgment and Issuance of Decree Nisi
The judge makes a ruling after argument and presentation of evidence. Where the court is satisfied that the marriage has irretrievably broken down, the court grants a Decree Nisi, that is, a temporary divorce order.
The Decree Nisi will stand for a period of 90 days so that an interested party may file objections if any before the actual divorce.
- Decree Absolute – Finalizing the Divorce
Where no objection is made for a continuous period of 90 days, the Decree Nisi is elevated to a Decree Absolute, and the marriage is deemed dissolved. At this stage, both parties are now free to remarry legally.
Key Considerations in Divorce Applications
- Minimum Duration of Marriage – The statutory minimum period a couple must have been married under Nigerian law before they can file for divorce.
- Exceptions to the Two-Year Rule – A court can allow an earlier filing of divorce in cases of exceptional hardship or serious misconduct.
- No Collusion or Connivance- The parties should act independently of each other in filing a divorce. Any evidence to show collusion to secure a divorce may invalidate the petition.
Legal Representation in Divorce
Due to several challenges attributed to the process of divorce, such as papers, courts, and negotiation on custody and other properties, retaining a reputable family lawyer will be key. The attorney ensures smooth processing, ensuring that all rights of the petitioner or respondent are protected accordingly.