MATRIMONIAL CAUSES ARE FOR HUMANS, JUST LIKE EVERY OTHER LEGAL PROCEEDING.
By Seyi Arowosebe
When lawyers file petitions for divorce or judicial separation in the registry of the court, it comes with a lot of backlashes. So long you represent the petitioner, questions will fly around like “Lawyer, why did you not settle these people’s marital problems. Why are you filing their case in court?”
At such a moment, we just allow the officials to do the talking, they have a right to their opinion. When they finish, we would invite them to see the facts of the petition and then they calm down. They realize it goes beyond filing for divorce or judicial separation.
A petitioner simply wants to retain his/her sanity by leaving his/her marriage. While I am not an advocate for divorce, I believe people should be allowed to decide for themselves what they want with their lives. The Marriage Act and other statute books were not enacted for the shelves. The case of Hyde vs Hyde was decided on earth, not heaven. It defined marriage as the union of one man and one woman to the exclusion of all others. So, if a member of the union chooses to quit the union, so be it.
The same way it is convenient for people to discharge themselves from a contract of employment or any contract whatsoever, marriage is a contract backed by law, the exception being that only a court of law or death of either party can call it a day with marriage.
There are many reasons why a party may decide to call it a day with his/her marriage. These have been put together as grounds for dissolution of marriage under section 15 (2) (a-h) of the Matrimonial Causes Act. One of these grounds is that the respondent has willfully and persistently refused to consummate the marriage. This simply means a party to the marriage has refused to have sexual relations with the other since the marriage was celebrated. Think about it.
The grounds for dissolution of marriage according to Section 15 (2) of the Matrimonial Causes Act are:
- That the respondent has willfully and persistently refused to consummate the marriage;
- That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
- That 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;
- That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
- That 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 made under this Act;
- That 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.
Parties in marriage do not only come to court for a divorce. Sometimes, they only want to be separated for a while. This is known as judicial separation. The grounds for judicial separation are stated under Section 39 of the MCA. Suffice to say that the section referred to the grounds stated in Section 15 (2) (a-h).
Another reason people come to court and submit themselves to matrimonial proceedings is to dispel a false claim that marriage has taken place between them and the respondent. This is known as jactitation of marriage, covered by Section 52 of the Matrimonial Causes Act. It simply means you want the court to make an order that you are not married to someone who has falsely boasted and persistently asserted that a marriage has taken place between the two of you (wannabes).
It is interesting to note that some marriages are void ab initio, and some are avoidable. Some persons end up in marriage with someone who gave them the wrong information and history of themselves. This in most cases can be difficult to reconcile. See section 5 of the MCA below:
Subject to this Act, a marriage that takes place after the commencement of this Act not being a marriage that is void; shall be voidable in the following cases but not otherwise, that is to say, where at the time of the marriage:
- Either party to the marriage is incapable of consummating the marriage;
- Either party to the marriage is of unsound mind, or a mental defective; or subject to recurrent attacks of insanity or epilepsy
- Either party to the marriage is suffering from a venereal disease in a communicable form; or
- The wife is pregnant by a person other than the husband.
Do not hesitate to seek spiritual or professional advice and ultimately legal advice if you observe a crack in your marriage contract. Life does not end after matrimonial proceedings. In fact, parties who have been divorced can validly come back, put their house in order and marry again under the law. It is as valid as it sounds.
In conclusion, legal proceedings of all forms are for humans to settle their disputes or terminate relationships in a civil manner.
Oluwaseyi Arowosebe Esq., a Legal Associate/Consultant at Citizens Gavel writes from Abuja, Nigeria.