An Exposition On The Absolute Bars To A Divorce Petition In Nigeria

By Bello Damilola

INTRODUCTION

The Black’s law dictionary defines divorce as a legal dissolution of marriage by a court of law, in other words the separation of legally married persons by the court of law. The concept of divorce as a matrimonial proceeding under the Nigerian law came to be as a result of the need to legally separate married persons under a legal marriage when such marriage has irretrievably broken down. The Matrimonial Causes Act (MCA) [1] makes provisions and regulates divorce proceedings in Nigeria. Section 15(1) of the Act provides that either party to a marriage may petition for a divorce where the marriage has irretrievably broken down.

The law of divorce is an aspect of family law and it regulates the conditions and procedures for dissolving a marriage and the consequences attaching to such a dissolution.[2] The law of divorce is one of the most invoked laws under the Matrimonial Causes Act in Nigeria however there is a need to understand that it is not all divorce petitions that will be competent before the court as there are certain factors that may or will operate to disqualify a divorce petition under the Act and these are referred to as the bars or defence to a divorce petition.

The bars to a divorce petition are mainly divided into two under the MCA, these are referred to as the absolute and the discretionary bars to a divorce petition. The discretionary bars to a divorce petition are provided for under sections 28a-c of the MCA. In the case of discretionary bars the court has the discretion whether or not to make a decree for divorce. Essentially regarding the discretionary bars to a divorce petition, the court has the freedom to  grant or deny a divorce petition depending on the circumstances of the case, in summary these circumstances are; Where the petitioner has committed adultery and such adultery has not been condoned by the other partner; Where the petitioner has willfully deserted the other partner without a good cause; Where the habits of the petitioner has contributed to the reasons of the divorce.[3]

This article will attempt to explain the absolute bars that will operate to disqualify and act as a defence to a divorce petition.

THE ABSOLUTE BARS TO A DIVORCE PETITION

In the old law i.e. the English law of divorce applicable in Nigeria prior to the Matrimonial Causes Decree of 1970, bars were provided for on the principle that divorce was a remedy for a matrimonial wrong and in some cases, a petitioner by his own conduct and in some circumstances must be precluded from obtaining a relief. [4]

The absolute bars to a divorce petition operates on the rule  that on the proof of an absolute bar, the court is bound to dismiss a divorce petition[5] thus on the existence and proof of an absolute bar, a petition for divorce will fail before the court and a decree for divorce will not be granted. The absolute bars to a divorce petition are:

1. Condonation
2. Connivance
3. Collusion

CONDONATION:

Condonation as an absolute bar to a divorce petition is provided for under section 26 of the MCA. The Black’s law dictionary refers to condonation in the context of a divorce proceeding, as one spouse’s express or implied forgiveness of a marital offence by resuming marital life and sexual intimacy. Thus, where A commits adultery and B who is A’s husband becomes aware of A’s adultery, forgives her and continues a marital life with her, B cannot rely on A’s previous adultery for the purpose of a divorce on a later date.

In the case of Sotomi v Sotomi[6] where a wife in a cross petition alleged that her husband had committed adultery on several occasions, her cross petition failed on the ground of condonation when evidence was led to show that on each occasion she had forgiven her husband and had sexual intercourse with him.

It is necessary to note that in order to rely on condonation as a defence there needs to have been knowledge, forgiveness and a resumption of marital life. Knowledge in this context refers to the awareness of the marital offence alleged to have been condoned. The reason behind the necessity of the element of knowledge in condonation is that one cannot pardon a transgression unless he believes that that one has been committed and one cannot forgive his spouse unless he believes that the latter is guilty of a misdeed. [7]

Forgiveness and the resumption of marital life work hand in hand, thus it may be safely concluded that a reinstatement back to marital life is essentially the evidence of forgiveness when it comes to condonation. In Ehigiator v.Ehigiator the court held that forgiveness alone without reinstatement cannot constitute condonation. Reinstatement takes the form of continuation or resumption of cohabitation, but the cohabitation must be accompanied by a mutual intention to live together as husband and wife. [8]

CONNIVANCE:

Connivance as an absolute bar to a divorce petition is provided for under section 26 of the MCA. It has been defined as the consent of a petitioner which may be express or implied to the misconduct alleged of as a ground for divorce. The courts have reasoned that a spouse whose conduct facilitated the other’s adultery has no more right to complain of his mate’s sexual unfaithfulness than does a husband whose wife has been raped, the underlying principle behind this bar is expressed by  the Latin principle volenti non fit injuria which  means “he who consents cannot receive an injury”.[9] In the case of Godfrey v Godfrey [10] where the petitioner had initially allowed the  co-respondent to stay with his wife and had even on one occasion told his wife to “to go to bed together” with him. On a divorce petition by the petitioner for subsequent marital misconducts between his wife and the co-respondent, the court held that his earlier connivance had contributed to the grounds alleged by him for his divorce petition.

Connivance may also be occasioned where a petitioner has encouraged or willfully contributed to the marital misconduct of the other spouse, a spouse may also connive at the continuance of a marital misconduct which has been going on for a period time, after he or she becomes aware of such a misconduct and subsequently consents to it whether actively or passively. [11]

COLLUSION:

Section 207 of the MCA makes provision for collusion as an absolute bar to a divorce petition. Collusion is refers to an agreement or acting in concert to procure the initiation or prosecution of a suit for divorce with intent to cause a perversion of justice. Collusion will also arise where the reason behind such an agreement is improper i.e. for the purpose of obtaining a substantial lump sum or compensation. [12]

Collusion consists of an agreement between the parties to commit or omit a legally significant act. [13] In other words, it is an agreement to deceive the court as to the existence or non-existence of certain facts in order to obtain a decree for divorce. In these circumstances concealments and misrepresentations which may lead to collusion may be divided into: Invention: Where spouse A claims that spouse B has committed an act when B has not done so, the collusion in this case will be complete when B is persuaded to keep his mouth shut on the subject and the court is misled; Commission: Where B actually commits the act  because he was persuaded by A to do so ; Omission: Where B omits to present a significant evidence which would have altered the outcome of the divorce proceedings but does not do so due to a persuasion from A.[14]

CONCLUSION

The law supports the preservation of marriage and the essence of the absolute bars to a divorce petition is to ensure the sanctity of marriage under the law, the court of law does not condone deceit and it will not tolerate the fraudulent misrepresentation of facts in any manner in order to obtain a decree of divorce. It is however humbly submitted that while the necessity of the absolute bars is recognized, the court should not apply the bars to include situations where a there has been a total breakdown of marriage, the absolute bars should not be interpreted to be an exception to the principle of irretrievable breakdown of marriage. Thus where the court is reasonably satisfied that to refuse a decree of divorce will subject the parties to exceptional hardship and that the marriage has indeed broken down irretrievably, a decree of divorce should not be denied on the grounds of the existence of an absolute bar.

REFERENCES

7. Matrimonial Causes Act, Cap M7 Laws of the Federation of Nigeria (LFN) 2004.
8. Ilegbune C.U. ‘A Critique of the Nigerian Law of Divorce under the Matrimonial Causes Decree1970’ [1970] 14(3) Journal of African Law, 178.
9. I. Nwogugu, Family law in Nigeria (3^rd edn, HEBN Publishers Plc 2014) 214.
10. Ilegbune C.U. ‘A Critique of the Nigerian Law of Divorce under the Matrimonial Causes Decree1970’ [1970] 14(3) Journal of African Law, 192.
11. I. Nwogugu, Family law in Nigeria (3^rd  edn, HEBN Publishers Plc 2014) 214.
12. Sotomi v Sotomi (1979) 2LRN 339.
13. Marvin M. Moore ‘An Examination of the Condonation Doctrine’ [1969] 2(2) Akron Law Review, 81.
14. I. Nwogugu, Family law in Nigeria ( 3^rd edn, HEBN Publishers Plc 2014) 214-215.
15. John W. Wheeler ‘An Examination of Connivance, a Defense to Divorce’ [1968]1(1) Akron Law Review, 55.

10. Godfrey v Godfrey (1964) 3ALL ER 154.

11. I. Nwogugu, Family law in Nigeria( 3^rd edn, HEBN Publishers Plc 2014) 218. 

12.  ibid

13. John S. Bradway ‘Collusion and the Public interest in the Law of Divorce’ [1962]47(3) Cornell Law Review, 382.

14. ibid, 382-383.