NB:

1. You need to refer to the Matrimonial Causes Act 1970, Laws of the
Federation of Nigeria 2004, CAP M7.
2. You must read up the cases referred to.

VOID AND VOIDABLE MARRIAGES

Where a petitioner brings a suit or action for nullity s/he is claiming that due to some defect
in the marriage the marriage is invalid i.e. there never existed a marriage.
A court of competent jurisdiction with either pronounce or declare that marriage if found to
be invalid void or voidable – See S2(2)(b) &(c) MCA 1970.
NB: The general provisions for nullity of the Act do not affect the validity or invalidity of
marriages celebrated before the commencement of the Act i.e. before 17 March 1970 – See
S6(1) MCA.
S3(3)MCA- provides for when a marriage celebrated before the commencement of the MCA
1970 will be voidable on the basis of consanguinity or affinity.
A marriage celebrated before the commencement of the 1970 Act will be voidable where the
parties to the marriage fall within one of the degrees of consanguinity or affinity set out in
Schedule 1 to the Degree.

Students must familiarise themselves with Schedule 1 to the Degree.

DIFFERENCES BETWEEN A VOID AND VOIDABLE MARRIAGE

See the case of De Reneville vDe Reneville (1949) where Lord Greene summed up the
fundamental differences between these two types of marriages.

Void Marriage:-
1. Is one where the marriage has never been in existence and the parties have never acquired
the status of H & W.
2. Since the parties have never been H & W a court decree does not have to be obtained.
It would however, be better to do so because the decree would be a judgment in rem, i.e.
binding on the whole world.
Also the petitioner would be able to ask for ancillary relief like maintenance and custody of
children – See S69 MCA.
3. Any person whether a party to the marriage or not can contest the validity of a void
marriage e.g. on the death of a H to a void marriage his relations or executor, may contest or
dispute the validity of the marriage in order to show that the surviving spouse is not his bona
fide widow – See S34 MCA.

See S3(1) MCA – It sets out when a court will declare a marriage to be void.
S3(1)(a) – Either of the parties is at the time of the marriage lawfully married to some other
spouses
A party should not marry another person during the subsistence of the marriage either under
the Act or customary law. If that person does so s/he will be committing bigamy.

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See S33(1) of the marriage Act.
Only parties to a subsisting customary marriage can contract a subsequent statutory marriage.

S3(1)(b) – The parties are within the prohibited degrees of consanguinity or affinity (See the
First Schedule to the MCA for the list)
Consanguinity – Relationship by blood.
Affinity – Relationship by marriage.

Note S4 MCA – re: Parties within the prohibited degrees of affinity who wish to marry each
other. How they can do so.

NB: -
i) A man is prevented from marrying his father’s wife (whether or not the father is alive)
because of the prohibited degree of affinity.
Compare this with situations under certain customs in Nigeria whereby a man is allowed to
inherit the wives of his deceased father.
ii) There is the omission of adopted children. Adopted children become children of the person
adopting them. They cannot marry them. The relationship by adoption should be deemed to
be consanguineous for the purposes of marriage.

S3(1)(c) – The marriage is not a valid marriage under the law of the place where the marriage
takes place, by reason of a failure to comply with the requirements of the law of that place
with respect to the form of solemnization of marriages.
A marriage under the Marriage Act must be celebrated in a registrar’s office or a licensed
place of worship.

See SS 33(2) &6(1) Marriage Act.

S27 Marriage Act – The marriage registry – must be before the Registrar of marriages in his
office in the presence of two witnesses between the hours of 10 o’clock in the forenoon and 4
o’clock in the afternoon with open doors.

See S21 Marriage Act – Marriage in a licensed place of worship.

S33(2)(b) – parties knowingly and wilfully acquiesce in its celebration under a false
name or names.
S33(2)(c) – parties knowingly and wilfully acquiesce in it celebration without a
Registrar’s certificate of notice or special license issued under S13 of the
Act.
SS11(2), 12, and 13.

See AKUWUDIKE V AKUWUDIKE

OBIEKWE V OBIEKWE

Voidable marriage:-
1. Is one that is validly subsisting up to the point that it is annulled on the application of one
or both parties owing to some existing defect – See S38(1) MCA.
2. Only a spouse to the marriage can apply for the marriage to be annulled. Until the marriage
has been annulled it is valid. – See S34 MCA.
3. To avoid any doubts it is best to obtain a court decree.

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Thus a voidable marriage will continue to validly subsist if not annulled by a party to the
marriage and if not done till the death of a spouse the relations or P.R. cannot seek to
invalidate it.

GROUNDS ON WHICH MARRIAGE WILL BE VOIDABLE

This is set out in S5(1) MCA.
……. a marriage that takes place after the commencement of this Act i.e. 17th March 1970
…..
1. S5(1)(a) - Either party to the marriage is incapable of consummating the marriage
A marriage is voidable where either party to the marriage is incapable of consummating the
marriage i.e. the party in question is incapable of having normal sexual intercourse.
Consummation entails ordinary and complete sexual intercourse or vera copula.
There must be the full penetration of the female organ by the male in the ordinary sense.
Partial or imperfect sexual relations is not consummation.
W (otherwise K) v W (1967) 3 A.E.R. 178
Shows that:-
1. Consummation or sexual intercourse is a matter of fact &
2. Partial or imperfect sexual relations does not amount to consummation.

L v L (1922)
A person may be capable of having normal sexual intercourse and at the same time be
infertile or sterile.
Fertility or the ability to conceive or procreate is not a requirement for consummation.

The use of contraception in various forms does not militate against consummation.
Baxter v Baxter (1947) 2 AER 886
The marriage was consummated even though artificial methods of contraceptives were used.
H thus not entitled to a decree of nullity.

Also the practice of coitus interruptis (interrupted sexual intercourse) does not militate
against consummation.
Thus penetration without ejaculation or emission of semen within W’s body still amounts to
consummation:-
i. R v R (1952) 1 AER 1194
Marriage consummated by the erection and penetration of W. Lack of emission was
immaterial.

Compare with

ii. CACKETT V CACKETT (1950) 1 AER 677

A marriage could be consummated if there was penetration but not emission of semen within
the body of W.

S5(1)(a) must be read together with S36(1) & (2)

S36(1) – The incapacity to consummate the marriage must exist at the time when the hearing
of the petition commenced.

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Thus the incapacity to consummate must exist at the time of the marriage and also at the
hearing of the petition.
So if the incapacity to consummate exists at the time of marriage, but is rectified before the
hearing of the petition or at the time of the hearing the marriage will not be voidable.

See S v S (1954) 3 AER 730

Also one of the conditions under S36(1)(a) – (c) must apply.

S36(1)(a) – The incapacity is not curable

See SY v SY (1962) 3 AER 104
H’s petition on nullity on the ground of W’s incapacity failed. She had an abnormal
vagina which could have been enlarged by the operation so as to permit full penetration
and she was thus not incapable of consummating the marriage.

Also where W has no natural vagina and a totally artificial one has been created by a similar
operation she would still be capable of intercourse constituting vera copula.

Look up S36(1)(b) – (c).

S36(2) – The provision of S36(2) reflect the principle or doctrine of law known as
approbation.
This is where a party has acquiesced in an abnormal marriage, which renders it inequitable
and contrary to public policy to permit that party who has affirmed such a marriage to have it
set aside.

See MORGAN V MORGAN (1959) 1 AER 139

S35(a) – puts a restriction on a party who is incapable of consummating the marriage. It

provides that such a party would not be granted a decree of nullity unless she was unaware of
the incapacity at the time of the marriage.
Thus a person who is unable to consummate can only bring a petition on the account of
his/her incapacity if he was not aware of the incapacity at the time of the marriage.

2. S5(1)(b)(i) – Either party to the marriage is of unsound mind or

(ii) – a mental defective or
(iii) – subject to recurrent attacks of insanity or epilepsy

If any of these deficiencies arise after the marriage it will not operate to make the marriage
voidable.

SMITH V SMITH (1940)

Unsoundness of mind denotes insanity and encompasses or involves the inability or
incapacity of a person to manage himself and his affairs.

S5(2) – defines ‘mental defective’

The mental inadequacy or deficiency may be congenital or existent at birth or arise thereafter
due to disease or injury.

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The unsoundness may not be outright or total idiocy but may be weakness, defectiveness or
inadequacy in understanding.

It may not be persistent insanity but delusions and irrational conduct or reactions in
respective or specific matters or particular subjects. Mere dullness or unusually low intellect
is distinct from insanity.

A spouse who is of unsound mind or is mentally defective is considered by law as being not
capable of carrying on a normal married life. The other spouse in such a case is entitled to
apply for a petition that the marriage be annulled or declared void.

If a party at the time of the marriage is subject to recurrent attacks of insanity or epilepsy, the
marriage will be voidable. Also where the insanity occurs or recurs periodically with intervals
of lucidity the marriage will be voidable.

See BENNETT V BENNETT (1969) 1 WLR 430

HUNPONU WUSA V HUNPONU WUSU (1969) 1 ALL NLR 62

The party asserting that the other party was insane at the time of the marriage bears the
burden of establishing or proving it.
However, a marriage will not be pronounced voidable at the petition or instigation of the
party suffering from the illnesses under S5(1)(b) – See S35(b) MCA.

Petitions for the annulment of marriages on the ground that a party is of unsound mind, a
mental defective or suffers from recurrent attacks of insanity are rare within the Nigeria
society. This is because families normally inquire about the health background of each other
prior to one marrying. In most cases where a family has a history of chronic or recurrent
illness one is unlikely to marry into such a family.

3. Either party to the marriage is suffering from a venereal disease in a communicable

form.
Where at the time of celebration of a marriage any of the party was suffering from a venereal
disease in a communicable form the marriage would be voidable.

Where there is no evidence to establish or show that the party in question suffers from the
ailment at the time of the marriage the disease will not constitute a ground for a decree of
nullity.
The spouse alleging the existence of the disease may establish or prove it in various forms
e.g. by producing medical evidence.

If a spouse proves that s/he suffers from venereal disease while s/he has not had sexual
intercourse with any other person there would be a rebuttable presumption that the venereal
disease was contracted from the other spouse.
The respondent can however, rebut the presumption by showing thorough medical evidence
or other evidence that s/he does not suffer from such a disease.

A party suffering from the disease in a communicable form cannot successfully bring or be
granted a decree of nullity on the ground of the disease – S35(b) MCA.

4. S5(1)(d) – the wife is pregnant by a person other than the husband

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Where at the time of celebration of the marriage the wife was pregnant by a person other than
the husband the marriage will be voidable at the H’s option.

NB: The court will refuse to make the decree if it is of the opinion that by any reason it would
in the particular circumstances of the case be harsh and oppressive to the respondent or
contrary to the public interest to make a decree e.g. the court will refuse to make the decree if
the petitioner had knowledge of the pregnancy at the time of the marriage as this would
amount to approbation of the fact, where H obtained knowledge after the marriage and
approved of it or if he had encouraged the association which give rise to the pregnancy when
the marriage was imminent.

The pregnant wife cannot use her pregnancy as a basis or ground to obtain a decree of nullity
– S35(c) MCA.

See restrictions under S37 re S5(1)b, (c) and (d)

Under S37(b) i.e. that the petition was filed not later that twelve months from the date of the
marriage the period of one year is construed strictly.
One cannot claim that s/he was ignorant of her/his right due to the fraudulent concealment by
another and thus that the period of one year should only begin to run from the date s/he
discovered the fraud.

CHAPLIN V CHAPLIN (1948) 2 AER 408

Held: That time always runs from the date of the marriage, even if the facts entitling the
petitioner to have the marriage annulled were fraudulently concealed from him by the
respondent.

See also SULLIVAN V SULLIVAN (1970) 2 ALL ER 168

SMITH V SMITH (1947) 2 ALL ER 741
STOCKER V STOCKER (1966) 2 ALL ER 147

See S38(1) – A decree of nullity in respect of a voidable marriage annuals the marriage with
effect from the date on which the decree becomes absolute. Therefore the decree has no
retrospective effect.

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 TERMINATION OF STATUTORY MARRIAGE
1. INTRODUCTION
Considering marriage between a man and a woman and not same sex marriage.
Two systems of marriage in Nigeria:-
i) Monogamous – i.e. the voluntary union for life of one man and one woman to the exclusion
of all others – HYDE v HYDE.

S18 Interpretation Act, CAP 123 LFN 2004 defines it as

‘a marriage which is recognised by the law of the place where it is contracted as a voluntary
union of one man and one woman to the exclusion of all others during the continuance of
the marriage’.

This type of marriage is governed by the Marriage Act CAP M6 LFN 2004 and the
Matrimonial Causes Act CAP M7 LFN 2004.

ii) Polygamous marriage i.e. the voluntary union for life of one man and one or more wives.
There is the customary law marriage and also the Islamic marriage.

Only the National Assembly can legislate on statutory marriages or marriages under the Act.
Whereas the State House of Assembly of the various states of the Federation can legislate on
marriages under customary law and Islamic law – See S4(2),(3) &(5) of the 1999
Constitution as amended.

2. Court, Forum and Power of Transfer

S2(1),(2) & (3) MCA 1970 –Petitioner may institute proceedings in the High Court of any
state or the Federal Capital Territory, Abuja whether or not he is resident in that particular
state.
E.g. Resident in Lagos one can institute matrimonial proceedings in Kaduna.

Compare with customary law where divorce can be obtained extra-judicially i.e without
recourse to the law court.
Look up dissolution of marriage under customary law:-
 Grounds for divorce.
 When the marriage is in fact dissolved.
 Return of bride price.
 Dissolution on death.

Only the H & W can institute an action in the High Court for the dissolution of their
marriage. The person instituting an action must be domiciled in Nigeria – See S2(3).

However, this may be inconvenient to the parties or one of them.

Therefore, the concept of forum convenience i.e. the state or the district in which an action
may be most appropriately brought, considering the best interest of the parties and the public.

Where the court is of the opinion that the forum is not convenient, it may exercise its power
to stay the action and transfer it to the High Court where it can be best conveniently tried.

1
The power of stay of matrimonial causes and transfer may be exercised by the court at any
time and at any stage either on application by any of the parties or of its own motion – See
S9(3) MCA.

Where a matrimonial cause is transferred from a court to another, all documents filed in the
former court shall be transmitted by the registrar or other officer of the court to the court or
registrar of the court to which the case is transferred.
The matter will proceed as if originally instituted by that court.

See S9(2) MCA.

See ADEGOROYE v ADEGOROYE (1996)

FOLORUNSHO v FOLORUNSHO (1996)

3. TWO YEAR RULE

1. S30(1) MCA 1970 – Cannot obtain a decree of dissolution of marriage within 2 years after
the date of marriage.
Thus in any problem question look to see if the marriage is more than 2 years.
If it is not and a petition for dissolution of marriage is brought to court, look to see if leave of
the court can be obtained –must be within the exceptions to the rule.
 Exceptions to the rule are stated under S30(2) MCA 1970
i) S15(2)(a) – wilful and persistent refusal by the respondent to consummate the marriage.
ii) S15(2)(b) – since the marriage the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent.
iii) Cross-proceedings to the institution of proceedings for a decree of dissolution of
marriage.
iv) See also SS30(3) & (4).
S30(3) – Conditions for granting leave
i) Must show that to refuse to grant the leave would impose exceptional hardship on the
applicant.
See cases re exceptional hardship - MAJEKODUNMI v MAJEKODUNMI (1966)
- OKANLAWON v OKANLAWON (unreported)
- WILLIAMS v WILLIAMS (1979)
or ii) That the case is one involving exceptional depravity on the part of the other party to the
marriage.
See case AKERE v AKERE (1962) re exceptional depravity

4. GROUNDS FOR DIVORCE – S15(1) MCA 1970

S15(1) – Either party to the marriage may apply to the court for a decree of dissolution of
marriage on the ground that the marriage has broken down irretrievably.
It is important that the petition states the marriage has broken down irretrievably otherwise it
would be thrown out.

2
Even if one of the grounds for divorce can be prove but it is not stated in the petition or
proved that the marriage has broken down irretrievably you will not be able to proceed with
your case.

Ekrebe v Ekrebe (1999) 3 N. W. L. R.514 – It was not sufficient that the petition contained
the fact on which the petitioner sought a divorce without stating the ground.
Megwalu v Megwalu (1994) – Where the Court of Appeal emphasised that the petitioner
must prove the ground that the marriage has broken down irretrievably.
5. FACTS EVIDENCING THE GROUND – S15(2) MCA 1970
There are eight facts, one or more of which must be proved before a decree of dissolution of
marriage may be granted.
i). S15(2)(a) – Wilful and persistent refusal to consummate the marriage.
This is an exception to the 2 year rule on petitions to the dissolution of a marriage.
Petitioner may petition at any time relying on the fact that the respondent has wilfully and
persistent refused to consummate the marriage.
Petitioner must satisfy the court that as at the commencement of the hearing of the petition
the marriage had not been consummated – S21 MCA 1970
If between the presentation of the petition and its hearing the marriage has been
consummated, it is likely the petition will be struck out.
The fact H is sterile does not amount to non-consummation.
See – Owobiyi v Owobiyi (1965)
Baxter v Baxter and other cases on consummation.
The relevant period for determining wilful refusal of consummation is after the marriage. The
fact the parties slept together before the marriage is not relevant.
There would be wilful refusal if the parties have had no intercourse since their marriage.
ii) S15(2)(b) – Since the marriage the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent.
This is an exception to the 2 year rule on petitions to the dissolution of a marriage.
Adultery i.e. the consensual sexual intercourse between 2 persons of opposite sexes at least
one of who is married to a person other than the one with whom the intercourse is had, and
since the celebration of the marriage.
The sexual relations with the third person must be voluntary or consensual during the
subsistence of the marriage.
Thus not adultery – Where a married woman is raped.
Where spouse is insane or under the influence of alcohol or drugs, as that
spouse will be taken not to understand the nature and consequence of the
act.

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Compare with customary law. A wife cannot rely on her H’s adultery to obtain a divorce. In
fact this may lead him to marry the woman with whom he committed the adultery which
would be permissible as polygamy is permitted under customary law marriage. A H on the
other hand s allowed to divorce his W on the basis of her adultery.

Petitioner must not only prove adultery but also that s/he finds it intolerable to live with the
respondent.
The requirement of intolerability is subjective.
It is the feeling of the petitioner that counts and not what a reasonable man would have felt.

Consider – Must the intolerability be consequent upon the adultery

- Akwara v Akwara (unreported) – Intolerability of life with the respondent does not have
to arise from the established respondent’s adultery.
Compare with Okala v Okala – The petitioner’s adultery and the respondent’s finding it
intolerable to live with the petitioner must be dependent on one another so that the
intolerability must be in consequence of the adultery.

---- Proof of adultery and intolerability

S82(1) – provides that a matter of fact shall be taken to be proved if it is established to the
reasonable satisfaction of the court.

Adultery may be inferred from the circumstances of the situation. READ THESE CASES
Faleye v Faleye & Anor (unreported)
Ogunleye v Ogunleye (1979)
Ekrebe v Ekrebe (1999)
Labode v Labode (1972)
Okala v Okala (1973)
Ambe v Ambe (1975)

Ochei v Ochei (1973)

The question to be asked with regards to intolerability are
i) What the present feelings of the petitioner are and
ii) What the person claiming the relief finds intolerable as s/he has to give some reasons or
some explanation why s/he finds it intolerable to live with the opposite party.

Cases on intolerability which must be read:-

Fajembola v Fajembola (1974)
Ambe v Ambe (1975)
Ibiwoye v Ibiwoye (1980)

----- Damages consequent upon adultery

 S31(1) MCA 1970 – a spouse can claim damages against any person who committed
adultery with the other party to the marriage.
If the petitioner prays for judicial separation only, damages cannot be claimed against the
adulterer.

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 The action for damages by a spouse against the adulterer will lie only in
proceedings for the dissolution of the marriage in which the adultery is alleged.

 The petitioner must prove before the court that the other spouse committed adultery
with the co-respondent if s/he is to succeed in their claim for damages.
One must also prove that s/he suffered some loss as a result of the adultery. The claim
will vary depending on the evidence. See Ambe v Ambe (1975)

 In awarding damages the court takes into consideration:-

- the value of the adulterous spouse to the petitioner. The value can be in the form of
money or loss of consortium between the petitioner and the respondent.
See Scott v Scott (1957)

 The party claiming damages for adultery must prove that the co-respondent knew that
the person with whom s/he was committing adultery was a married person.
See Ogunleye v Ogunleye (1979)

 S31(2) MCA 1970 –The party to the marriage will not be entitled to the award of
damages on the proved adultery of the other spouse where s/he condones the adultery.

 S31(3) MCA 1970 - Cannot claim damages for adultery, which was committed more
than three years before the date of the petition.
Therefore, must sure that the claim for damages for adultery is not more than three years
before the date of the petition.

iii) S15(2)(c) - Respondent’s unreasonable behaviour

Petitioner must establish:
1) That the respondent has behaved in a particular way which can be said to be a detestable
act or condemnable conduct.
2) Based on the facts proved in (1) then go on to prove that the petitioner cannot reasonably
be expected to live with the respondent.
The test of whether the petitioner can or cannot reasonably be expected to live with the
respondent is objective. The behaviour must be such that a reasonable man cannot endure.

You must prove both sets of facts for the court to hold that the marriage has broken down
irretrievably.

S16(1) – lists a number of acts which would come under this section. This list is not
exhaustive.
NB: S16(1)(a). The exception to the 2 year rule on petitions to the dissolution of a marriage
would apply here – See S30(2) MCA

READ THE FOLLOWING CASES:-

Dairo v Dairo (unreported)
Odukomaiya v Odukomaiya (unreported)

5
 Anakwenze v Anakwenze (1972)
Alli v Alli (1972)
Ayangbayi v Ayangbayi (1979)
Sotomi v Sotomi (1976)
Kholi v Kholi (1992)
Ogunleye v Ogunleye (1979)

iv) S15(2)(d) – Desertion for a continuous period of at least one year

Desertion has been defined by Adesanya S. A.

‘The unilateral withdrawal from cohabitation by one spouse (i.e. the respondent) without
the consent of the other spouse (i.e. the petitioner), without just cause and with the
intention of bringing cohabitation permanently to an end’.
See also Oghenevbede v oghenvebede (1973)
Ojogun v Ojogun
Adebiyi v Adebiyi (1979) – The mere act of one spouse leaving the matrimonial
home will lead to an inference of an intention to put the matrimonial consortium to
an end. Desertion starts at the moment of his/her departure.

Walker v Walker (1952)

Compare with Hopes v Hopes (1948)

A spouse alleging desertion by the other spouse bears the burden of proving it. That spouse
will have to prove physical separation and also the animus deserendi i.e. the intention to
permanently put the cohabitation to an end.
Where a spouse is temporary absent from the other e.g. on holiday or business animus
deserendi cannot be inferred.

Where the spouses agree to live apart neither can be said to be in desertion.
However, as soon as the initial consent of one spouse is withdrawn, desertion begins to count
against the spouse who refuses without just cause or excuse to cohabit with the other – see
S19 MCA.

S20 MCA – Desertion will continue to count against the spouse who refused to cohabit with
the other even if that spouse subsequently becomes insane and is not able to have the
necessary intention to continue the desertion.

Where spouses are living in two different towns e.g. because of their work:-
See Ekanem v Ekanem (1975)
Compare with Opajobi v Opajobi (1980)

The court will consider the domestic relations of the parties in determining just cause or
excuse:-
See Oleka v Oleka (unreported)
Ambe v Ambe

6
A customary law W has no right to leave her matrimonial home without H’s consent. She can
only do so where as a result of his cruelty all attempts by members of his family to bring him
to reason have failed.
Also H has no right to send W away unless she has given cause for it.
The Customary Law Manual does not state whether or not a man can desert W without cause.
Where attempts to reconcile the separated spouses fail, the ultimate remedy for desertion may
be divorce.

NB. Desertion must be for a continuous period of at least one year immediately preceding the
presentation of the petition.

v. S15(2)(e) – Living apart for at least two years

S15(3) – Under S15(2)(e) & (f) the parties are treated as living apart if they are not living
with each other in the same household.
Nsolo v Nsolo (1977) - Living apart involves physical separation accompanied by the
termination of consortium.

See Aniechonwu v Aniechonwu (1978)

Wachukwu v Wachukwu (unreported)
Odlili v Odlili (1973)
Ayimonche v Ayimonche (unreported) – The petitioner alleging two years living apart
must also show that the respondent does not object to the dissolution of the marriage.
Ibeawuchi v Ibeawuchi (unreported) – The fact that the respondent did not contest the
suit was not sufficient evidence that he did not object to the dissolution of the marriage.

vi. S15(2)(f) – Living apart for a continuous period of at least three years
Remember that one would be said to be living apart unless they are living in the same
household – S15(3) MCA

See Tagbo v Tagbo (unreported)

Bassey v Bassey (1978)
Ladipo v Ladipo – Must show that at least one of the spouses had the intention to bring
the union to an end.

The period of three years begins to run when the party(s) started to regard the marriage as at
an end.

vii. S15(2)(g) – Non-compliance with Decree of Restitution of Conjugal Rights

Tie up with S47 MCA

The court would not make an order under S47 unless it was satisfied that the party seeking
the order desired conjugal rights to be rendered and was willing to render such to the other
party.
Thus, although the court can order cohabitation by making a decree under S47 a refusal to
comply with it confers on the other spouse a right to petition for divorce.

7
The petitioner would have to prove to the court that the respondent had ignored previous
requests for cohabitation which had been written in conciliatory language – S49(a) and (b).

vii. S15(2)(b) – Presumption of death

The death of a statutory spouse terminates the marriage.

Where a petitioner petitions on the facts stated in this section s/he must establish that for a
continuous period of seven years immediately preceding the presentation of the petition the
other spouse has been absent from him or her and there is no reason to believe the other party
to be alive – See S16(2)(a) & (b).

The petitioner must state:-

i) the latest date on which s/he had reason to believe the other party was alive and
ii) the circumstances which lead her/him to believe the other party was then alive
iii) give particulars of any inquires made by her/him for the purposes of locating the other
spouse.

Under customary law the death of H does not necessarily terminate the marriage. His heir
may inherit W and she may chose to remain in his family.
The death of a customary W has little or no effect on H’s marriage capacity as he is entitled
to marry another woman during the life of W.

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 BARS AND DEFENCES TO A DIVORCE PETITION
The situation here is the petitioner has established the necessary grounds to show that the
marriage with the respondent has broken down irretrievably (see notes on ‘Termination of
Statutory Marriage’). However, because of the existence of some circumstance or situation
which the respondent raises, the petitioner is prevented from obtaining an order for decree of
divorce.
The relevant sections are SS26, 27 and 28 MCA 1970, CAP. M7 LFN 2004.
1. ABSOLUTE BARS – SS26 AND 27
Once an absolute bar is established the court is bound to dismiss the divorce petition.
There are three types of absolute bars:-
 Condonation
 Connivance
 Collusion

2. DISCRETIONARY BARS – S28

In establishing a discretionary bar the court has discretion whether or not to grant a decree of
divorce.
There are three types of discretionary bars:-
 Petitioner’s adultery
 Petitioner’s desertion
 Petitioner’s conducting or contributing conduct.

ABSOLUTE BARS
i) CONDONATION
The conditional forgiveness of a spouse guilty of a marital misconduct and the reinstatement
of him/her to the position of a spouse.
Condonation therefore bars a party from obtaining a decree of divorce on the fact of adultery
or unreasonable behaviour.

Must show:-
- That the spouse guilty of the matrimonial misconduct has been forgiven (Forgiveness) and
- That spouse has been reinstated to the position of a spouse (Reinstatement).
For reinstatement/restoration the reconciliation between the parties must have been genuine,
which depends on the facts of each case.

Willingness to forgive does not constitute condonation, as both H & W must intend to be
reconciled.

See OKALA v OKALA (1973)

SOTOMI v SOTOMI (1976)
KEATS v KEATS (1859)

There may be reinstatement without sexual intercourse. However, where sexual intercourse
occurs between the spouses after knowledge by one spouse of the other’s adultery the courts
may draw the inference of condonation.

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In the case of a man such sexual intercourse will be conclusive evidence of condonation –
See Henderson v Henderson (1944)

Compare with that of a W. It is less stringent. A W who submits to sexual intercourse with
her adulterous H at his request cannot be deemed to have condoned his adultery. Sexual
intercourse is not a conclusive proof of W’s condonation.

In KEATS v KEATS (1859) it was said that:

‘With reference to a wife, to whom a knowledge of her husband’s adultery has been brought
home, and who has yet continued to share his bed, the rule has not been so strict. The wife
is hardly her own mistress, she may not have the option of going away, she may have no
place to go, no person to receive her, no fund to support her, therefore her submission to
the embrace of her husband is not considered by any means such strong proof of
condonation as the act of a husband in renewing his intercourse with his wife’.

Where W has truly forgive H before the sexual intercourse took place, condonation would be
presumed against her.

See MORLEY v MORLEY (1961)

OKALA v OKALA (1973) compare with MARTINS v MARTINS (1931)

A plea of condonation will fail if the condonation was obtained by pretence or fraud – See
PRIOR v PRIOR (Unreported).

See also SIFO v SIFO

Condonation is subject to the condition that the spouse responsible for the conduct
constituting the basis of the petition should not commit a further offence, A subsequent
misconduct will revive the condoned offence.
E.g. W guilty of adultery which H has condoned.
W subsequently commits adultery.
H may petition for divorce on either act of adultery (Thompson v Thompson (1961))

ii) CONNIVANCE
Where a petitioner has consented, encouraged, wilfully contributed or in any other way
instrumental to the commission of the misconduct constituting the ground of petition for
divorce, an order of divorce shall be refused on the ground that the petitioner has connived at
the misconduct.

Connivance connotes that one party has acquiesced, encouraged or given permission either
expressly or impliedly to the commission of the misconduct.

See OKALA v OKALA

OBIAGWU v OBIAGWU (unreported)
GODFREY v GODFREY (1964)

Where X is unaware of initial misconduct but on becoming aware of it subsequently

acquiesces to it or encourages it, X would be said to have ratified or approved the earlier
misconducts which were not connived – See RUMBELOW v RUMBELOW (1965)

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TERMINATION OF CONNIVANCE
Can connivance be spent? If for example H connives at W’s adultery with X in January but
later objects to its continuation can H rely on subsequent acts to which he objects?

GODFREY v GODFREY (1964)

Held that in certain circumstance connivance could be spent subject to the following
conditions –
i) Whether the petitioner had truly repented and had done all in his power to repair the
damage he had done.
ii) That the earlier act of connivance was not the effective cause of subsequent adultery and
that it played no role therein.

iii) COLLUSION
This exists if there is an agreement between the spouses, with the intent to deceive the court
into granting a decree of divorce which it would not otherwise grant.

See OGUNLEYE v OGUNLEYE (unreported)

OLAJUMOKE v OLAJUMOKE (unreported)

2. DISCRETIONARY BARS
i) Petitioner’s uncondoned or revived adultery
Where a petitioner for dissolution of marriage has committed adultery prior to the instituting
of the petition and the adultery has not been condoned by the other spouse or if so has been
revived, the court has a discretion whether or not on the petition of such a spouse to grant a
decree of dissolution of the petitioner’s marriage.

See AMBE v AMBE (1975)

A petitioner who has committed adultery must state so in a ‘discretion statement’ which is
appended to the petition, with a prayer to the court to dissolve the marriage notwithstanding
the adultery.

ii) Petitioner’s desertion before happening of fact alleged

Where one or more facts stipulated in S15(2) are proved against the respondent, but such fact
occurred after the petitioner had deserted the respondent, the court has a discretion to grant or
refuse a decree of divorce.
In AMBE v AMBE a decree of divorce was granted to H (respondent) even though W
committed the adultery after moving out of the matrimonial home.

iii) Petitioner’s conducing or contributing conduct

Where the petitioner’s behaviour or conduct has conduced, contributed to or avoided the
happening of a fact or facts for divorce the court may refuse to grant a decree for divorce.

It is not sufficient to merely establish the petitioner’s misconduct, there must be a nexus or
causal connection between the habit or conduct complained of and the ground in which the
divorce petition is premised or based.
See OPAJOBI v OPAJOBI (1980)

Neglecting one’s wife and preferring other women’s company may contribute to the wife’s
adultery.

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The court will exercise its discretion to grant a decree where the fact relied upon by the
petitioner is that stipulated under S15(2)(f) i.e. three years living apart by the spouses.
See LADIPO v LADIPO (1980)

See also BURGESS v BURGESS