DISSOLUTION OF MARRIAGE

INTRODUCTION

Marriage as a universally recognized and respected institution is defined to be the voluntary

union for life of one man and woman to the exclusion of all others until divorce or death, in the
case of Statutory marriage. The nature of marriage in relation to dissolution, is the state of being
married, that is the relationship, rights, duties and obligations enjoyed by parties as a result of
being married. Thus, where a marriage is dissolved, such privileges come to an end.

Definition of the Dissolution of Marriage

Dissolution of marriage is therefore the legal process that terminates a marriage. It is the formal
and legal ending of a marital union by a Court of law. It is otherwise known as divorce. It is
important that for a marriage to undergo divorce proceedings in Court, such marriage must be a
statutory marriage legally conducted and evidenced by a valid Marriage Certificate. A statutory
marriage is one governed by the Matrimonial Causes Act1 and includes marriages conducted in
a licensed place of worship, a registrar's office and marriage under special license. The Act
confers jurisdiction on the State High Court to determine the petition for dissolution of marriage.

Adefarasin C.J in Majekodumni v Majekodumni2 observed that; ‘It is not conducive to the
public interest that a man and woman should be bound together in marriage, the duties of which
had long ceased to be observed by both parties, and the purposes of which have immediately
failed. The purpose of this assignment is to discuss the factors that aid the court to determine
whether a marriage has broken irretrievably so as to grant a divorce.

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DISSOLUTION OF MARRIAGE

Under Section 41 of the Matrimonial Causes Act3, judicial separation relieves the Petitioner from any

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2
CCHCJ/6/74P.809
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Cap M7 Laws of the Federation of Nigeria.
obligations to cohabit but the marriage itself is not dissolved and it does not affect the status, rights, and
obligations of the parties to the marriage. Separation is when the parties no longer live under the same
roof but are still married. There might however be instances where they still live under the same roof but
with boundaries (e.g not sleeping in the same room). This can occur for reasons such as having minor
children and wanting to protect them from the trauma of parents living separately. The parties might also
decide not to separate based on a court order as they can create a mutual agreement whereby, they agree
to separate.

This kind of separation is not sanctioned by the court. When parties are separated, they have no right to
remarry. In other words, it is a court-ordered separation which is made in the court where matters relating
to child custody, child support, spousal support, maintenance may be dealt with. It is filed in court
through a petition just like a divorce. This order can be used if the parties decide to divorce in the future.It
is most relevant where one of the parties to the marriage is unlikely to consent to a mutual separation.

Dissolution of marriage is the process of completely terminating a marriage between parties. In a divorce
process, there is a court order to dissolve the marriage totally, which is to bring the marriage to a
permanent end. A divorce or dissolution of marriage takes place on the ground that the marriage has
broken down irretrievably under Section 15(1) of the Matrimonial Causes Act.4

Below are the major differences between judicial separation and dissolution of marriage:

1.The first and most obvious thing is that in separation, the marriage is still legally intact, but the couple
is not under the obligation to cohabit. The couple involved in a separation can come back together
anytime they wish to and start cohabiting. Under divorce, however, the marriage is brought to a
permanent end and the ex-couple is allowed to remarry to anyone else.

2. A judicial separation is not final as it could either lead to the couple coming back together or lead to a
divorce but under a divorce, it is a final order.

3. Under separation, there are still marriage obligations that are existing. For instance, if a party to the
marriage dies intestate, the property will be dealt with as if they were still married while a divorce ends
all such obligations.

4. A divorce petition is brought on the ground that the marriage has come to an end and there cannot be a
solution anymore while separation although shares some similar facts with divorce, it cannot be brought
under the ground that the marriage has broken down irretrievably.

5. There is only one ground for dissolution of marriage which is that the marriage has broken down
irretrievably and there are 8 facts, one of which must be proven in order to show get a divorce. The facts
under a dissolution of marriage are the actual grounds for separation, not that the marriage has broken
down irretrievably. This is so because separation is not intended to end a marriage.

Conclusively, judicial separation gives both parties time to take a break from the marriage and eventually
decide whether or not they want to remain married or go their separate ways.

Also, while separated, the couple will still enjoy some benefits that married people enjoy. Ultimately, the

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Cap M7 Laws of the Federation of Nigeria.
major difference between a separation and divorce is whether or not the marriage has totally come to an
end and the fact that the marriage, under separation, might still be revived in the future.

THE TWO YEARS' RULE.

The Matrimonial Causes Act lays down proceedings for the decree of dissolution
of marriage. Section 30, MCA5 provides that a decree for dissolution of marriage
shall not be instituted within two years after the date of the marriage except by the
leave of Court. Thus, the General Rule is that a decree for dissolution of a marriage
shall not be be instituted within two years of marriage except through the leave of
Court.

There are however Exceptions to this General Rule. Section 30(3), MCA,6
provides that the Court shall not grant leave to Institute such proceedings except on
the ground that such refusal would impose exceptional hardship on the applicant or
that the case is one involving exceptional depravity on the part of the other party to
the marriage.

Thus, the exceptions to the two year rule include:

1. Where such refusal will impose exceptional hardship on the applicant.

2. Where the case is one involving exceptional depravity.

Grounds for Dissolution of Marriage

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Section 15 of the Matrimonial Causes Act7 provides for various grounds for dissolution of

marriage. Section 15 (1), MCA8 provides that where a marriage has broken down

irretrievable,either party may petition for divorce upon the grounds as stipulated by the Act.

Thus, the SINGLE GROUND /SOLE GROUND for divorce is when the marriage has broken down

IRRETRIEVABLY. Section 15(2), MCA9 provides for the factors which enables the court to

determine whether a marriage has broken down irretrievably. The factors which enables the

court to determine whether a marriage has broken down irretrievable includes:

1. WILLFUL AND PERSISTENT REFUSAL TO CONSUMMATE:

A spouse may petition for the dissolution relying on the fact that the other party has willfully and persistently
refused to consummate the marriage. SECTION 15(2) (A), MCA10, provides that a court shall hold a marriage
to have broken down irretrievably of the petitioner satisfies that the respondent has willfully and persistently
refused to consummate the marriage. In MASON V MASON11, the court held that refusal within this context
implies that there was a proposal to the refusing party and the word wilfull means want of reasonable cause.
In OWOBIYI V. OWOBIYI12, the court held that there had not been any request, whether implied or direct to
consummate the marriage by the petitioner.

2. ADULTERY AND INTOLERABILITY

A marriage would be deemed to have broken down irretrievably if the respondent has
committed adultery and the petitioner find it intolerable to live with the respondent.
Adultery is defined as the voluntary sexual intercourse between a married person and someone
other than their spouse. To establish adultery, the petitioner must prove that the respondent
committed adultery and that the petitioner finds it intolerable to live with the respondent.
Adultery can be a difficult ground to prove, as it requires evidence of the respondent's infidelity.
Section 15(2)(b), MCA13, the court shall hold a marriage to have broken down irretrievable if
the petitioner satisfied that since the marriage, the respondent has committed adultery and the
petitioner finds it intolerable to live with the respondent. Two elements must be proven:
a. The commission of adultery.
b. The petitioner finds it intolerable to live with the respondent.

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Cap M7 Laws of the Federation of Nigeria.
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Cap M7 Laws of the Federation of Nigeria.
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Cap M7 Laws of the Federation of Nigeria.
11
(1979) 1 F.M.L.R; 149
12
(1965) 2 All NLR 200

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Matrimonial Causes Act, Laws of the Federation, 2004.
The adultery must have occured after the celebration of marriage. The petitioner will have to
prove the act of adultery and consequently establish the fault and offence of the respondent.
Adultery can be proved in the following ways:
a. Birth of a child.
b. Under suspicious circumstances.
c. General cohabitation.
d. Confession and admission
e. Blood test and DNA.
In AKINYEMI V AKINYEMI14, where the respondent and co- respondent were seen kissing, embracing and
spent over five hours with each other, the court held that it could be inferred from the facts of the case that
adultery was committed.

3. RESPONDENT INTOLERABLE BEHAVIOUR.

A marriage would be deemed to have broken down irretrievably if the petitioner finds the
respondent's behaviour intolerable. SECTION 15(2)(C), MCA15 provides that a court shall hold
a married to have broken down irretrievably if the petitioner shows that the respondent has
behaved in such a way that the applicant cannot reasonably be expected to live with him or her.
In ARINYE V. ARINYE, the court held that the test of intolerability is subjective.
To succeed under this ground, it must be shown that the respondent's behaviour was grave and
weighty. Also, the conduct must have occurred since the celebration of marriage.
4. DESERTION:
A marriage would be deemed to have broken down irretrievably if the respondent has deserted
the petitioner for a continuous period of one year immediately preceding the presentation of
the petition. Section 15(2)(d), MCA16 provides that a marriage would be deemed to have
broken down irretrievable if the respondent has deserted the petitioner for a continuous period of at least
one year immediately preceding the presentation of the petition;

Desertion refers to a situation where one spouse has abandoned the other without reasonable
cause. In OGHENEVBEDE V OGHENEVBEDE17, desertion was defined as the separation of one
spouse from the other with an intention of bringing cohabitation permanently to an end
without reasonable cause and without the consent of the other spouse.
To establish desertion, the petitioner must prove that the respondent deserted the petitioner
without reasonable cause and that the petitioner has been left without support or maintenance.
Four key elements needs to be present for desertion to be constituted:
A. De facto Separation of the parties

14
(1963) 1All NLR 340
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Cap M7 Laws of the Federation of Nigeria.
16
Matrimonial Causes Act, LFN, 2004.
17
[1973] UILR 104
This connotes that all marital obligations are severed. The most obvious being a physical
departure by one party from marital home. In HOPES V HOPES18, where both couples lived in
the same house but in separate room but the wife still performed her duties and the husband
subsequently left the house, the court held that the husband was in desertion
B. Animus Deserendi
This is the intention to withdraw from cohabitation permanently. Thus, temporary separation
cannot constitute desertion. Where a spouse abandons the matrimonial home, there is a
presumption that he intended to desert, Animus Deserendi. In AGU V AGU19, where the wife
refused to relocate to Nigeria with her husband, the Court held that she was in clear desertion.
C. Lack of just cause
A spouse will only be guilty of desertion if there is no good cause for his leaving the deserted
spouse. The General Principle is that any conduct which makes the continuance of matrimonial
cohabitation virtually impossible will provide a good excuse for a spouse to desert. Section
18,MCA20, provides that a married person whose conduct constitutes just cause or excuse for the
other party to the marriage to live separately or apart, and occasions that party to do so, shall be
deemed to be in desertion without just cause or excuse.
D. Absence of consent
A spouse who leaves the matrimonial home without the consent of the other spouse may be in
desertion. There is no desertion if the petitioner consented to the separation. In IKPI V IKPI21,
where the wife refused to join the husband in Zaria, the Court held that the wife was in clear
desertion.
There are two types of desertion:
1. Simple desertion
2. Constructive desertion
In simple desertion, it is the guilty spouse who has abandoned the matrimonial home whilst in constructive
desertion, it is the spouse who remains at home who is in desertion, for he has by his conduct expelled the
other spouse. Also, the court will decline to grant dissolution of marriage based on desertion unless it is
satisfied that it was the respondent who deserted the petitioner.

5. LIVING APART
Section 15(2)(e)22, Matrimonial Causes Act provides that a marriage to have broken down
irretrievable if 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;

Living apart involves physical separation accompanied by the termination of consortium. To

establish separation, the petitioner must prove that the couple has been living apart for at least
18
(1949) P. 227
19
Suit No. E/ID/1966 (unreported), Oputa, J. Enugu High Court, 18 July 1966.
20
Matrimonial Causes Act, LFN, 2004.
21
[1957] WNLR 59.
22
Matrimonial Causes Act, LFN,2004.
two years and that the respondent consents to the divorce, or that they have been living apart for
at least three years and the respondent does not consent.
SECTION 15(2) (F)23, MCA, provided that a marriage would be deemed to have broken down
irretrievably if the parties to the marriage have lived apart for a continuous period of at least
three years immediately preceding the presentation of the petition.
Section 15(3), MCA24 provides that for the purpose of Section 15(2)(e) and (f), the parties to a
marriage will be treated as living apart unless they are living with each other in the same
household.
In LADIPO V LADIPO25, the court held that it must be shown that at least one party intends
that the union be brought to an end for the action to be successful.
In OSHO V OSHO26, where the husband with the mutual consent of the wife went to study in
Britain, the Court held that there was no living apart of the spouses.
6. FAILURE TO COMPLY WITH A DECREE OF RESTITUTION OF CONJUGAL
RIGHTS.
Where the other party to the marriage for a period of not less than one year, has failed to comply
with a decree of restitution of conjugal rights, the marriage will be dissolved. Section 15(2)(g),
MCA,27 provides that a marriage would be deemed to have broken down irretrievably if the other
party to the marriage has, for a period of not less than one year failed to comply with a decree of
restitution of conjugal rights.
This provision will come into effect where the respondent, has refused to resume cohabitation
with the petitioner within the statutory period of at least one year.

7. PRESUMPTION OF DEATH
Where the respondent has been absent from the petitioner for such a time and in such circumstances as to
presume that the respondent is dead, a marriage may be dissolved in this instance. Section 15(2)(h),
MCA28provides that a marriage would be deemed to have broken down irretrievably where 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.

This fact may be established by proof of the respondent's continuous absence for seven years preceding the
petition and the fact that there was no reason to believe he was alive at any time within the period. Where a
petition for the dissolution of marriage is based on the facts specified under the MCA, it must state:
1. The latest date the petitioner has reasons to believe the respindent was alive and the circumstances.
2. The particulars of any enquiries made bt the petitioner for the purpose of determining the location of the
respondent.

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Matrimonial Causes Act, LFN,2004.
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Matrimonial Causes Act, LFN,2004.
25
(1980) FNLR p. 179
26
CCHCJ/6/74, p. 829.
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Cap M7 Laws of the Federation of Nigeria.
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Cap M7 Laws of the Federation of Nigeria.
BARS TO DIVORCE UNDER STATUTORY LAW
A Bar means an obstacle or a preventive barrier. They operate as estoppel in matrimonial causes to sanction the
conduct of a petitioner in relationship to the matrimonial misconduct complained on the part of the respondent
spouse.

There are two bars to divorce if proved to exist divorce will not be a granted.
1.Absolute Bars
2.Discretionary Bars.
The decree of divorce will be denied if Absolute or Discretionary Bars apply to the case. An
Absolute Bar is binding on the court, once the facts which constitute the bars are proved. A
Discretionary Bar leaves room for the court to exercise discretion whether or not to dismiss the
case based on the facts of the alleged misconduct on the part of the petitioner.
ABSOLUTE BARS
If an absolute bar is found to exist then the court has no choice but to refuse to grant the divorce
where a discretionary bar is proved the court may or may not grant the petition.
1.CONDONATION
Section 26, MCA29 provides that no decree of dissolution of marriage can be made where the
petitioner has condoned the misconduct of the reapondent on which he relies on his petition.
This is the forgiveness of a marital offence and reconciliation between the parties with full
knowledge of all the material circumstances. Under Section 10(3), MCA30 provides that adultery
shall not be deemed to have been condoned unless and until conjugal cohabitation shall have
resumed.
In CRAMP V. CRAMP 31 the decision in this case was that a husband who has sexual intercourse
with his wife after knowledge of her adultery must be conclusively presumed to have condoned
the offence. Mere forgiveness does not amount to condonation. For condonation to exist the
forgiveness must be followed by cohabitation and the restoring of the offending party to their
former position as husband or wife.
In Crocker v. Crocker32 where a soldier who was serving overseas during the war wrote to his
wife offering to forgive her for having committed adultery when he was away. The wife accepted
the offer but on his return home he changed his mind and petitioned for divorce. It was held that
there was no condonation because there was no reinstatement.
Commission of a further marital offence will revive condoned adultery or cruelty. That is where
the respondent has committed adultery and cruelty which is condoned by the petitioner if the
respondent commits another offence then the condoned offence will revive and the petitioner
will be entitled to a divorce on the ground of the condoned act.

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31
(1920) P. 158
32
(1921) P. 25
In HARRISON- OBAFEMI V. HARRISON- OBAFEMI33, the Court held that a husband who
deserted his wife after the commission of adultery has revived the condoned adultery.
The rationale for making condonation an absolute bar is to prevent a spouse who has forgiven an
offense to go back on the decision. There are three principal ingredients of condonation:
A. Knowledge
B. Forgiveness by the wronged spouse
C. Reinstatement of the respondent.
2. CONNIVANCE –
A decree of dissolution shall not be made if the petitioner has consented encouraged or
wilfully contributed to the commission of the misconduct on which a petition for divorce is
based. Section 26, MCA34, provides that where a petitioner consented encouraged or wilfully
contributed to the commission of the misconduct on which a petition for divorce is based, he
would be refused a decree of divorce on the ground that he connived at the misconduct.
In OBIAGWU V. OBIAGWU,35 the Court held that the wife who consented to the respondent's adultery
cannot be granted a decree of divorce on the ground that the petitiiner connived at the respondent's adultery.

3. COLLUSION -
This is an agreement between the petitioner and respondent to act in concert, to procure the
initiation or prosecution of a suit for divorce with intent to cause a pervasion of justice. 36To
constitute collusion, there must be two elements:
I. Agreement
II. Improper motive or purpose.
In Churchward v. Churchward the petitioner declined to divorce his wife who wanted to marry the co-respondent
until she had made a settlement in favour of the children of the marriage and she agreed to do so since she wanted to
be released from the marriage, deposited some amount and the petitioner then filed his petition. It was held that this
amounted to collusion.

DISCRETIONARY BARS
1.Conducing Conduct -

33
(1965) NLR 446
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Cap M7 Laws of the Federation of Nigeria.
35
Suit No. 0/5D/1966 (unreported)
36
Omolade O. Olomola. Family Law and Succession in Nigeria.
Section 28(c), MCA37, provides that where the habit or conduct of the petitioner is such that is
condoned or contributed to the existence of the ground for divorce relied upon by the
petitioner, the Court may refuse to grant a decree of divorce.
This is conduct which conduces the commission of a marital offence. Therefore cruelty, neglect,
desertion or other misconduct towards a spouse who afterwards as a result commits a marital
offence may bar the petitioner from obtaining a divorce.
In BURGESS V. BURGESS38, where the husband deserted the home and never supported his family
financially, the Court held that the continued desertion was not occasioned or conducted to by the
petitioner's conduct. Also, in OPAJOBI V OPAJOBI39, the Court dismissed the husband's cross+ perition on the
ground that his conduct had conduced to the wife's adultery.

2. Petitioner’s own Adultery -

The petitioner's adultery that has not been condoned is deemed to be a discretionary bar, no matter the facts for
a decree of divorce. Section 28(a), MCA40 provides that where the adultery has been condoned, it cannot serve
as a bar unless it has been revived by a subsequent misconduct.

3. Desertion of the Petitioner

Section 28(b), MCA,41 provides that the Court has a discretion to refuse a decree of divorce in favour of a
petitioner who has deserted the respondent wilfully before the commencement of the petition. If the
petitioner has a good cause for deserting the other spouse, his conduct will not constitute a discretionary bar.
4. Exercise of discretion.
Where a petitioner establishes a ground for the dissolution of marriage but discloses his own misconduct,
which constitutes a discretionary, the Court may refuse to grant a decree of divorce. The discretion of the Court
is exercisable on the guidelines of recognized principles. In BULL V. BULL42, it was held that the exercise of
court's discretion falls into three categories:
1. Factors relating to the interest of persons directly or indirectly affected by the suit.
2. Other relevant factors relating to the married life of the parties.
3. Factors based on the principle that it is the public interest that matrimonial relief should be granted on the
basis of complete candour snd truthfulness on the part of the party seeking the relief.

Under Rule 2843 of the Matrimonial Causes Rules made a full statement of the facts upon
which the petitioner relies for the exercise of the court’s discretion should also be lodged in court

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38
(1917) NZLR 563
39
(1980) FNLR 217
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Cap M7 Laws of the Federation of Nigeria.
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Cap M7 Laws of the Federation of Nigeria.
42
[1965] 1 All ER 1057.
43
Matrimonial Causes Rules, LFN 2004.
with the petition. Once the petitioner has proved his ground for divorce and none of the bars has
been proved then the court should grant the divorce decree.
THE DECREE FOR THE DISSOLUTION OF MARRIAGE
Section 44(3), MCA44 provides that a decree for the dissolution of marriage will only be granted
by Court after evidence by the petitioner has been received in support of the petition.
DECREE NISI AND DECREE ABSOLUTE.
A decree for the dissolution of marriage is granted in two stages:
I. Decree nisi
II. Decree absolute.
Section 56, MCA45 provides that a decree for the dissolution of marriage under this Act shall, in
first instance, be a decree nisi. Thus, a decree nisi is first granted followed after the expiration
of 3 months, when it becomes a decree absolute.
Section 57,MCA46 provides where there are children of the marriage who are under the age of
sixteen years at the date of the decree nisi, or who in special circumstances have attained the
age of sixteen years at that date, the decree nisi will not become absolute unless the Court is
satisfied that by its order, proper arrangements have been made for the welfare of the children.
In ADEYINKA V ADEYINKA47, the Court held that before a decree nisi is made absolute, the
judge must be convinced that statutory arrangements have been made for the children of the
marriage.
As soon as the decree nisi is made absolute either spouse is then free to remarry which is not the
case under the decree nisi and under Section 16 of MCA if a party remarries before a decree nisi
is made absolute, then that marriage will be void.

CONCLUSION

In conclusion, judicial separation and dissolution of marriage are legal processes available to
couples in Nigeria seeking to end their marriage or live apart. While judicial separation allows
couples to live apart while remaining legally married, dissolution of marriage, or divorce, ends
the marriage completely.
Grounds for both procedures include adultery, unreasonable behavior, desertion, and others
specified in the Matrimonial Causes Act. Both processes are subject to discretion of the court and
must be satisfied with the criteria met before a decree can be granted.

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Cap M7 Laws of the Federation of Nigeria.
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Cap M7 Laws of the Federation of Nigeria.

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47
(1971) 1 NMLR 255.
FEDERAL UNIVERSITY, OYE - EKITI

Faculty: LAW

Course Code: LPT 312

Course Title: FAMILY LAW II

Group: GROUP ONE (1)

 Assignment: DISSOLUTION OF MARRIAGE,

DISCUSS

LECTURER IN CHARGE: BARRISTER OYEDEJI

ADEFISAYO

TABLE OF CONTENTS

1.INTRODUCTION

2. DEFINITION

3.DIFFERENCES BETWEEN SEPARATION AND DISSOLUTION OF MARRIAGE

4.THE TWO YEARS’ RULE

5.GROUNDS FOR DIVORCE/DISSOLUTION OF STATUTORY MARRIAGE

6.DEFENCES AND BARS TO A PETITION FOR DIVORCE

7.THE DECREE OF DISSOLUTION

8.CONCLUSION
9.REFERENCES

GROUP 1 MEMBERS

1. Ekundayo Damilola A. Law/2020/1039

2. Peters Cherish Funmilola Law/2020/1078
3. Abraham Precious Oluwakemi Law/2020/1002
4. James Oluwaseyi Eniola Law/2020/1048
5. Oladimeji Nosimot Boluwatife Law/2020/1064
6. Owoseni Fisayo Mercy LAW/2020/1076
7. Aderinto morenikeji korede LAW/2020/1016
8. Olorunfemi Faithful LAW/2020/1071
9. Akinwole Bright Elizabeth LAW/2020/1030