HOW TO FILE A DIVORCE PETITION IN NIGERIA: A STEP-BY-STEP GUIDE FOR SPOUSES.

The decision to end a marriage is never an easy one, often fraught with emotional complexities and difficult conversations. While divorce can be a challenging period, understanding the legal process in Nigeria can help alleviate some of the stress and ensure a smoother transition.

This guide provides a step-by-step overview of how to file a divorce petition in Nigeria, offering clarity to spouses contemplating or navigating this significant legal journey.

Important Disclaimer: This article provides general information and is not a substitute for legal advice. Given the nuances of family law, it is highly recommended that you consult with a qualified legal practitioner in Nigeria before taking any steps.

Understanding the Legal Basis for Divorce in Nigeria

Divorce proceedings in Nigeria are primarily governed by the Matrimonial Causes Act (Cap M7, LFN 2004). This Act sets out the grounds upon which a marriage can be dissolved and the procedures to follow.

The Sole Ground for Divorce:

Unlike some jurisdictions with various "fault" or "no-fault" divorce options, the Matrimonial Causes Act stipulates one sole ground for divorce: that the marriage has irretrievably broken down.

However, to prove this "irretrievable breakdown," the petitioner (the spouse initiating the divorce) must satisfy the court with one or more of the following eight facts:

Adultery: The respondent (the other spouse) has committed adultery and the petitioner finds it intolerable to live with the respondent.
Unreasonable Behaviour: The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This is a broad ground and can cover various forms of misconduct, cruelty (physical or emotional), or neglect.
Desertion: The respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
Living Apart for Two Years: The parties 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 for Three Years: The parties have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition. In this case, the respondent's consent is not required.
Failure to Consummate: The respondent has willfully and persistently refused to consummate the marriage.
Presumption of Death: The respondent is presumed to be dead (e.g., missing for an extended period, no news).
Non-Compliance with Decree of Restitution of Conjugal Rights: A decree for restitution of conjugal rights has been made, but the respondent has not complied with it.

Step-by-Step Guide to Filing a Divorce Petition

Step 1: Consult with a Lawyer

This is the most crucial first step. A family law specialist will:

Assess your case: Determine if you have sufficient grounds for divorce based on the facts outlined above.

Advise on jurisdiction: Confirm the appropriate High Court to file your petition (usually the State High Court where either party resides or where the marriage was celebrated).

Explain the process: Outline the legal steps, potential timelines, and costs involved.

Discuss ancillary reliefs: Advise on related matters such as child custody, visitation, child maintenance, spousal maintenance (alimony), and division of matrimonial assets. These can be sought alongside the divorce or separately.

Step 2: Prepare the Divorce Petition

Your lawyer will draft the divorce petition, which is the formal document initiating the divorce proceedings. This document typically includes:

Parties' details: Full names, addresses, and occupations of both the petitioner and the respondent.
Marriage details: Date and place of marriage, and a certified true copy of the marriage certificate.
Jurisdictional facts: Why the court has the authority to hear the case.
Facts proving irretrievable breakdown: The specific grounds you are relying on (e.g., details of adultery, unreasonable behaviour, or periods of separation).
Schedules: Listing any children of the marriage and their details.
Reliefs sought: What you are asking the court to grant, including the dissolution of the marriage, and any ancillary reliefs (custody, maintenance, property settlement).
Verification: An affidavit sworn by the petitioner confirming the truth of the statements in the petition.

Step 3: File the Petition at the High Court

Once drafted and sworn, your lawyer will file the divorce petition and accompanying documents (such as the certified true copy of the marriage certificate and affidavit verifying the petition) at the Family Division of the High Court in the appropriate state.

Payment of Fees: Applicable filing fees must be paid to the court.

Step 4: Service of the Petition on the Respondent

After filing, the court will issue the petition. The next critical step is to formally serve the petition and all accompanying documents on the respondent.

Personal Service: Generally, the petition must be served personally on the respondent by a court bailiff. This ensures the respondent is aware of the proceedings and has an opportunity to respond.
Substituted Service: If personal service is not possible (e.g., the respondent is evading service or cannot be found), your lawyer can apply to the court for an order for substituted service (e.g., by pasting the documents at their last known address, or through newspaper publication).

Step 5: Respondent's Response

Once served, the respondent has a specified period (usually 8 days, but can be extended) to respond to the petition by filing:

Acknowledgement of Service: Confirming receipt of the petition.
Answer: A formal response to the allegations in the petition, admitting or denying the facts stated.
Cross-Petition: If the respondent also wishes to seek a divorce or other reliefs against the petitioner, they can file a cross-petition within their answer.

Step 6: Reconciliation Attempts (Mandatory)

The Matrimonial Causes Act mandates that the court, at various stages of the proceedings, shall consider the possibility of reconciliation. This is usually done through court-appointed marriage counsellors or by the judge directly. If reconciliation fails, the case proceeds.

Step 7: Hearing of the Petition

If no reconciliation is achieved, the case will proceed to trial.

Evidence: Both parties (and their witnesses, if any) will present their evidence to the court to prove their respective cases. This involves oral testimony, cross-examination, and tendering of documents.
Submissions: Lawyers for both sides will make legal arguments and submissions to the court.

Step 8: Judgment/Decree Nisi

If the court is satisfied that the marriage has irretrievably broken down based on the presented facts, it will grant a Decree Nisi. This is an interim order for divorce.

Waiting Period: The Decree Nisi typically becomes absolute after a period of three months. This waiting period allows for any last-minute reconciliation or for any party to show cause why the decree should not be made absolute (e.g., if there was fraud or material non-disclosure).

Step 9: Decree Absolute

After the three-month (or specified) waiting period has elapsed from the date the Decree Nisi was granted, and no valid reason has been shown against it, your lawyer will apply to the court for a Decree Absolute.

Finality: Once the Decree Absolute is granted, the marriage is legally dissolved, and both parties are free to remarry.

Considerations for Ancillary Reliefs

While the divorce petition focuses on dissolving the marriage, crucial matters like:

Child Custody and Access: Determining who the children will live with and how the other parent will have contact.
Child Maintenance: Financial support for the children.
Spousal Maintenance (Alimony): Financial support for one spouse by the other, particularly if one party will suffer significant financial hardship as a result of the divorce.
Division of Matrimonial Assets: How properties, savings, and other assets acquired during the marriage will be shared.

These issues can be agreed upon by the parties and presented to the court for endorsement, or they can be litigated separately by the court if an agreement cannot be reached. It's often advisable to address these alongside the divorce petition to ensure a comprehensive resolution.

Conclusion

Filing for divorce in Nigeria is a legal process that requires careful attention to detail and adherence to the Matrimonial Causes Act. While it can be an emotionally taxing time, understanding the steps involved and, most importantly, enlisting the services of a competent legal practitioner, can ensure that the process is managed efficiently and your rights and interests are protected.

Clementina E. Ukiri, Esq.

07057269862