Nov 19, 2017

Living Apart As A Ground For Dissolution of Marriage | Simileoluwa Owotomo

INTRODUCTION AND RELEVANT FACTS
Under the Matrimonial Causes Act, 1970, the grounds for dissolution of marriage are succinctly stated in Section 15(1), (2), (a)-(h), (3) with supplementary provisions in Section 16, MCA. For the purposes of this write up, the provisions of Section 15(2) (a)- (h) and 15(3) of the Matrimonial Causes Act will be stated as follows;

15 (2) The Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts-
a.   That the Respondent has willfully and persistently refused to consummate the marriage;
b.   That since the marriage, the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
c.   That since the marriage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;

d.   That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
e.   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;
f.    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;
g.   That the other party to the marriage has, for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made under this Act;
h.   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
In addition to the listed facts under S. 15 (2) of the Act, S. 16 (1) of the Matrimonial Causes Act stipulates Fourteen (14) other circumstances, facts, out of which if proved would constitute the fact that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. These facts include: The commission of rape, sodomy, or bestiality by the Respondent, habitual drunk, or drug addiction for two years, frequent convictions for crime coupled with habitually leaving the Petitioner without reasonable means of support, attempting to murder the Petitioner or inflicting grievous bodily harm on her refusal to comply with a maintenance order and confinement in a mental institution for five years during the six years period immediately preceding the presentation of the petition.
The law therefore requires that every petition for dissolution of marriage contain specific ground or grounds that will fall within the set out facts under S15 (2) and 16 (1) of the Matrimonial Causes Act. See:-Harriman v. Harriman (1989) 5 NWLR (Pt 119) 6 C.A Megwalu v. Megwalu (1994) 7 NWLR , Ibrahim v. Ibrahim (2007) 1 NWCR (Pt 1015) 383 C.A Ash v. Ash (1972) WLR 347                        
From the foregoing, it can be deduced that one or more of the following grounds herein are provided for by the MCA as grounds for dissolution of marriage.
2.   ISSUE(S) FOR DETERMINATION
LIVING APART AS A GROUND FOR DISSOLUTION OF MARRIAGE
It is important to note that the onus of proof with regards to the facts set out in Section 15 (2), (a) - (h) of the Matrimonial Causes Act, lies on the Petitioner.
Success or otherwise of the petition depends largely on how diligently and adequately this burden is discharged. Failure in this regard will entail a dismissal of the petition, moreso, where one of the parties opposes the dissolution of the marriage.

Thus, by virtue of the said provision of the law, a Petitioner at the hearing in a matrimonial causes proceeding, must satisfy the trial court of the fact or facts alleged or relied upon.
Again, by virtue of Section 82 (1) and (2) of the said Act, such matter or fact shall be established to the reasonable satisfaction of the court put differently, the matter or fact as alleged shall be sufficiently proved once the court is reasonably satisfied of the existence of the ground, fact or matter as alleged.
 It is noteworthy, that the phrase reasonable satisfaction, has not been defined in the Act. Nevertheless, it connotes adducing all available relevant and adequate evidence in support of the averments before the trial court and reasonably satisfactorily too
By virtue of Section 15 (2) (d) of the Matrimonial Causes Act, a court is bound to hold that a marriage has broken down irretrievably if it is established that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
So, what is desertion? Desertion is the withdrawal of support and cessation from cohabitation without the consent of the other spouse and with the avowed intention of abandoning allegiance, fidelity or responsibility and remaining separated in perpetuity. Put differently, desertion means abandonment or voluntary withdrawal from all marital obligations by a married person, without any just cause.  Thus, to establish the allegation of desertion, a petitioner must establish:
(a) Physical separation.
(b) Avowed or manifest intention to remain separated on a permanent basis.
(c) Absence of consent from the other spouse.
(d) Absence of any good, just cause or justification.
It is to be noted also, that the law gives recognition to two types of desertion, namely, simple desertion and constructive desertion.
In the former, it is the absentee spouse who has abandoned the matrimonial ship and abdicated responsibility for requisite duties, while in the latter; it is the spouse who remains aboard the matrimonial ship who is in desertion, in that the said spouse has by his or her conduct expelled the other.
Having established desertion under the purview of the MCA, It is necessary to discuss what can be termed as living apart. In discussing what is termed as ‘living apart”, it has been stated that mere physical separation of the parties to a marriage does not by itself constitute "living apart,

For living apart to arise, there must be in addition to physical separationthe intention or mental element expressed by one or both parties to terminate and bring the marriage to an abrupt end.

Hence, so long as both the husband and wife do not regard the marriage as having been torpedoed, then it cannot be said that the marriage has broken down irretrievably, even though the parties are physically separated. In this connection, the mere compliance with an order of transfer or movement by a worker from the location of his matrimonial home to another location without his wife accompanying him for one reason or the other, does not render the worker liable to be classified or described either as a deserter or as living apart. This is moreso, because compliance by such a worker with the order of transfer cannot by whatever means be regarded as unreasonable or irresponsible. See MRS. HELEN ANIOKE v. MR. BEN CHARLES ANIOKE (2011) LPELR-3774(CA)
In Omotunde v. Omotunde (2001) 9 NWLR (Pt.718)525 per ADEKEYE, J.C.A. (Pp. 62-63, paras. D-E), it was held as follows; 
In my view, what is reasonable satisfaction of court is difficult to define. There is no kind of blanket description for same either - but it must depend on the exercise of judicial powers and discretion of an individual Judge. It however entails adducing all available evidence in support of an assertion before the court. By section 15(2)(1) of the Act: a court hearing a petition for the dissolution of a marriage shall hold the marriage to have broken down irretrievably if the parties to the marriage lived apart for a continuous period of three years immediately preceding the presentation of the petition. The law is that the provision is mandatory and the court has no discretion to exercise.
The section has the factor of absence of fault element characteristic of other matrimonial offences-the law behind the section that is 15(2)(1)as far as the living apart is concerned is not interested in right or wrong or guilt or innocence of the parties. Once the parties have lived apart, the court is bound to grant a Decree."
From the above, it can be deduced that the main ingredient for divorce proceedings, is that the parties must have lived apart.
According to Common Law,however, constructive desertion, where there was an emotional rather than a physical removal of one spouse from the marriage, could be grounds for a divorce even though the parties still resided on the same house
The 2006 case of Ricketts v. Ricketts (393 Md. 479) appears to have created loophole in the steadfast requirement for a physical separation. In that case, the husband and wife had moved to separate bedrooms after one spouse had stated that she would never resume marital relations with the other.
The Court allowed the divorce to proceed, even though they had been living under the same roof, under the theory of constructive desertion, stating: it is “constructive desertion, as ground for divorce, when the misconduct of one spouse makes it impossible for the other to continue to live with the erring spouse without loss of his or her health or self-respect or gives reasonable apprehension of bodily injury, justifying the innocent spouse in leaving the other.” The Court found that the final decision by one spouse to never be intimate with the other again created a situation of desertion. The Court went on to state that constructive desertion, where there was an emotional rather than a physical removal of one spouse from the marriage, could be grounds for a divorce even though the parties still resided on the same house.
However, in Nigeria, it is necessary to note that parties are said to be living apart unless they are living with each other in the same household, See Section 15 (3) MCA
Thus, parties cannot be said to be living apart if they are indeed living together in the same household
It is also necessary to note that the reasons that a Petitioner gives for living apart is not held to unreasonable scrutiny by the Court. The most important factor is to establish that parties have indeed lived apart for a continuous period preceding the presentation of the petition.
In UZOCHUKWU v. UZOCHUKWU (2014) LPELR-24139(CA), it was held as follows;
''The parties thus lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. The lower court therefore erred in holding that there was no evidence that the living apart was for a continuous period of at least two years preceding presentation of the petition.
I must add that it is immaterial who has between the parties caused them to live apart as it seems to me that Section 15 (2) (e) of the MCA does not permit the court to go into a fault-finding expedition. See OMOTUNDE V. OMOTUNDE supra in which the Court of Appeal expressed a similar view on Section 15 (2) (f) of the MCA which view is applicable to Section 15 (2) (e) of the MCA. See also IBEAWUCHI V. IBEAWUCHI (1974) UILR (103) 67 and ORUGOH V. ORUGOH (1974) 4 UILR (1) 120. Per EKANEM, J.C.A. (Pp. 22-23, paras. E-B)
3.   CONCLUSION
In Nigeria, a court cannot dissolve a marriage or, declare a marriage to have broken down though it appears the marriage has broken down irretrievably unless one of the facts listed in S. 15(2) of the Matrimonial Causes Act is established by the Petitioner. See Ibrahim V. Ibrahim (supra), Damulak V. Damulak (2004) 8 NWLR pt 874 page 151 Per NDUKWE-ANYANWU, J.C.A. (Pp. 12-14, paras. C-D)
It is also noteworthy to state that a decree of divorce or of nullity of marriage must not be made absolute, and a decree of judicial separation must not be granted unless the Court is satisfied that arrangements have been made for the welfare of every child of the family. Welfare of the child is of paramount consideration. If possible the court could consult the child's wishes in considering what order ought to be made. See Odogwu v. Odogwu (1992) NWLR (Pt. 215)(1992) 2 SCNJ 357, Re A (all infant) (1955) 2 ALL ER 202 (also in (1955) 1 WLR 46
Simileoluwa Owotomo
Associate Counsel at Ayodele,Olugbenga & Co. 

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