03 Jul Can you get a Divorce within the first 2 years of marriage in Nigeria?
Divorce within first 2 years of marriage in Nigeria
Under the Matrimonial Causes Act in Nigeria, a husband or wife in a marriage can only request for a divorce from the courts after they have been married for at least 2 years. The reason for this 2-year rule (as it is sometimes called) is because of the desire of the courts to protect the institution of marriage.
The idea therefore is that if people could get married and then decide to divorce so quickly after the marriage, they are not showing the requisite respect for the institution of marriage which is after all is a legal status and contractual agreement.
Therefore, the 2-year rule stipulates that for divorce proceedings to commence, the parties must have been married for at least 2 years! That is not to say that the Law is requiring that the husband and wife must continue to live as a couple for 2 years. No, where a marriage has broken down, both parties can decide to live apart and be separated. You can read about how to go about a separation here.
However, please note that as with every rule there are exceptions, and the 2-year rule has several them. In this case, there are 14 exceptions which the law allows for. If your circumstance falls within one of those exceptions, then you are able to file for divorce within the first 2 years of your marriage. The exceptions are listed below for ease of reference:
- Where either the husband or wife was lawfully married to another person at the time of the marriage
- Where the requirements for the proper solemnisation of the marriage were not followed e.g. ceremony performed by an unlicensed person
- Where the consent of either of the couple was obtained by duress or fraud
- Where there was a mistake as to the identity of the other party or the nature of the ceremony performed
- Where one party was mentally incapable of understanding the nature of the marriage contract
- Where either of the parties is not of marriageable age. It should be noted here that the Nigerian Constitution does not establish a minimum age of marriage. The Child Rights Act, which was passed in 2003, sets the age of marriage at 18 years-old. However, only 23 of Nigeria’s 36 states have adopted this act. As a result, in some areas of the country the minimum age of marriage can be as low as 12 years-old.
- Where both parties are within what is known as the prohibited degrees of consanguinity and affinity. The prohibited degrees of consanguinity and affinity refer to a list of relationships which are not allowed by law to marry e.g. brother and sister, uncle and niece etc.
- Where at the time of the marriage either party was incapable of consummating it e.g. the husband is suffering from some form of erectile dysfunction
- Where at the time of the marriage either party is of unsound mind, a mental defective, or subject to recurrent attacks of insanity or epilepsy
- Where at the time of the marriage either party is suffering from a venereal disease in a communicable form. This would include all sexually transmitted diseases and infections.
- Where at the time of the marriage the wife is pregnant by a person other than her husband.
- Where the other person has refused to consummate the marriage
- Where the other party has committed adultery
- Where the other party has committed acts or rape, sodomy or bestiality
Finally, the Law gives the judge the discretion to be able to grant a divorce within the first 2 years of marriage, however the person requesting for the divorce must specifically request for ‘leave of court’. The court will exercise this discretion only in circumstances where refusal to grant the leave would impose exceptional hardship on the applicant or the case is one involving exceptional depravity on the part of the other party. You can see from the use of the word ‘exceptional’, that granting leave is something which the court does not take very lightly and so the circumstances must be indeed be one which are exceptional, or else the court will just ask the parties to wait for the 2 years to lapse.
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