This is not legal advice. This piece only seeks to educate and promote a healthy conversation.
In Nigeria, there is only one ground for divorce. This is when a marriage has broken down irretrievably. Instances that lead to this include cruelty, adultery, and desertion for at least one year.
Newly weds(and old couples) have a legal duty to live together in the same household, though not necessarily under the same roof. That is, they can live in different places or countries as long as they have so agreed.
Desertion can be described as a matrimonial misconduct, and it occurs when there is an intention to part with the other spouse, coupled with the intent to bring the cohabitation(living together) to an end. In a reported decision, the husband forced his wife out of the matrimonial home, and abandoned her for three years without any maintenance; it was held to amount to desertion.
Another example would be instances where the husband deliberately moves out of the matrimonial home without the consent of his wife, or where he lives a completely isolated life from his wife, regardless of the fact that they live together, e.g. where he cooks his own food, sleeps in a separate room, denies his wife sex and fails to communicate with her.
In the same vein, when a husband travels out of the country, in search of greener pastures, and never comes back to his wife(family) or gets married to (or cohabitates permanently) another woman, all these may amount to desertion. This is the present reality of lots of married people in Nigeria.
However, four elements must be established to prove desertion:
1. Actual separation of the spouses,
2. The intention to end cohabitation permanently,
3. The lack of consent from the deserted spouse,
4. Absence of just or reasonable cause for the desertion.
Where the elements above have been proved, the innocent party (i.e. the deserted partner) may sue for judicial separation, restitution of conjugal rights, or even dissolution of marriage.
The law affords the innocent party the above mentioned options. Marriage – it is believed – is contracted for different reasons. The law recognises that when companionship, support, and all other benefits cease to exist, there is adequate reason to dissolve such unions or seek other remedies.
In sum, if a spouse has been deserted, there is a fitting prescription under the Nigerian law.
By - Hightower Lawyers
This article was first posted here.