How to Get a Divorce in Nigeria

There are two ways to get a divorce or end a statutory marriage in Nigeria – one of them is through divorce proceedings filed in the High Court.  The other one is when your spouse dies. The divorce process in Nigeria can be overwhelming. No one gets married with the intention of getting a divorce and we all take our marriage vows pretty seriously. In Nigeria marriage is considered a primary life choice and divorce is discouraged and stigmatised. But sometimes despite your best efforts a marriage break down and it may become necessary for your physical, mental and financial health to file a divorce process. This blog post will help you understand the process of divorce in Nigeria. 

What Type of Marriage Do You Have?

In Nigeria there are two types of recognised marriage, a statutory marriage and a customary marriage. 

A statutory marriage takes place at a marriage registry or a church empowered to conduct a statutory marriage eg the Catholic church marriages are recognised as statutory. For marriage to be statutory it must be evidenced by a Form E certificate and this certificate must be presented to the court when filing a divorce process.

You can find everything you need to know about formalising a statutory marriage here.

A customary marriage on the other hand is conducted according to various applicable customary laws. Customary marriages are contracted under the native law and custom of the brides paternal family. Not the groom’s. A marriage under Islamic law is considered a customary marriage and Sharia law is applicable. A customary marriage such as IgbaNkwu in Igbo Nigeria is also sometimes blessed in a church. If you did not actually sign and receive a Form E certificate after your church wedding it is probable that you have a customary marriage. 

There is no such thing as a religious marriage. Reference to a Christian marriage in the Criminal Code is to statutory marriages. If your marriage was in a church that is not recognised by the courts under Matrimonial Causes case law it is considered a church blessing of a customary marriage. If you’re not sure whether your church marriage is recognised  as a statutory marriage check if your marriage certificate is in the Form E. Like this one below.

The type of marriage you have will determine the appropriate court where you will file your divorce process in Nigeria and the lawyer you should retain to represent you. If it’s a statutory marriage you’ll need a lawyer with experience at the High Court. A divorce in a customary marriage is initiated in a customary court or area court. Look for a lawyer with experience in those courts.

The process for divorce in Nigeria as explained here is for statutory marriages. Divorce under customary law is usually less cumbersome and easier. If you would like to discuss a customary divorce please book a consultation with me here. 

Do You Have Children? 

It’s important to consider your children before filing a divorce process in Nigeria. Under statutory marriage law the best interest of the children of the marriage are the primary consideration in awarding custody. Can you prove to the court that giving you custody of the children will be in their best interest? And pause to consider, will custody of the children be in your best interest? What are the ages and the gender of your children? The courts have a wide discretion in determining the best interest of the children when granting custody. It is usually considered in the best interest of the children of tender age i.e under the age of 8 years and girl children, to be with their mother. Regardless you will have to make a comprehensive plan for their care and maintenance for the courts consideration. 

How To File Divorce Processes in the High Court

First of all you will need to retain a lawyer. In Nigeria all divorce processes in the High Court have to be signed and filed by a lawyer. There is no way around it at this time. Choosing a lawyer is a very personal experience. Some lawyers in Nigeria do not take divorce matters on principle. Others believe it is their duty to reconcile a couple on verge of divorce and insist on mediation before they file the divorce process. Personally I assume that by the time a party to a marriage comes to me for legal options the marriage has already broken down irretrievably. Mediation can be emotionally exhausting for both parties and their lawyers. I also think it’s wrong for a lawyer who has acted as a mediator, which is a non-adversarial role, to thereafter seek to represent the party in what may be a contentious divorce process.  In Nigeria before someone visits a lawyer to discuss their legal options family, friends and church have usually tried and failed to broker a reconciliation. It is unnecessary for a lawyer to repeat this. Choose a lawyer that listens to your needs and puts them first, not his church, not his religion, not his messianic ego. Assess his or her understanding of matrimonial law and whether it meets your needs. Remember, a lawyer is a service provider and you are paying for a service. 

In my practice I meet clients whose previous lawyers had convinced them they couldn’t get or didn’t deserve maintenance or settlement or custody in a divorce process. They felt uncomfortable with the lawyer but didn’t leave immediately. If you’re not comfortable with the advice your lawyer is giving you go to another one. Keep talking with different lawyers till you find one you are comfortable with. They’ll all try to keep you as a client, some will be more insistent than others. Just remember you don’t have to retain a lawyer just because you stepped into his office. Ask if the lawyer charges a consultation fee and pay it. If you don’t like what you hear you can leave without lying that you’ll be back and without feeling you have to retain this particular lawyer because you just spent the past hour interrogating him or her. Of course its also just good manners. If I had a penny for every smart alec that spends hours grilling me then high tails out when they learn my fees I might be able to take on more pro bono cases. In my practice I no longer see prospective clients without a consultation fee. It  respects my our time and the clients. Needless to say, a statutory divorce in Nigeria is expensive.

Most of us wouldn’t hire a staff at home or office without interviewing several candidates. Don’t choose a divorce lawyer just because he or she is ‘a friend’. Be vigorous in assessing their experience and advice. Beware of divorce lawyers that hustle you, you know the hustle when you encounter it. The ones more intent on getting your money than explaining to you your rights and how they will secure them. The ones that use fancy legalese talk that you don’t understand. That’s their whole point. For you not to understand and for them to appear even more powerful and god-like. You’ll always have problems with the glib talking divorce lawyer. They’ll never listen to you. It’s all about them. Once you’ve chosen a divorce lawyer and paid the agreed fees do take your lawyers advice. Your lawyer works for now and that means he or she is paid to give you the best advice possible on how to achieve your goals during your divorce process.

In Nigeria there is only one ground for divorce and that is that the marriage has broken down irretrievably.  During your initial consultation with the lawyer will most likely ask you about why you want to file a divorce process and will discuss the applicable grounds for divorce in Nigeria. The lawyer should evaluate and give you and opinion on the evidence you have available and whether it meets the legal requirements for grounds of divorce as stipulated in the matrimonial causes act. There are however a number of ways to show that a marriage has broken down irretrievably and these are the various grounds for divorce. You need to be sure that your reasons for seeking a divorce in Nigeria meet the legal grounds for a divorce. At your initial consultation also discuss what else you want.  Do you want custody of the children or access? Do you have enough money to maintain yourself or do you need to ask your spouse for maintenance? Do you have joint property with your spouse and will you be asking for the court to make a property settlement? What does the lawyer you are talking to say about your chances of getting any of these reliefs? Do you meet the criteria? Do you feel confident that this particular lawyer can get you what you want? 

Once you’ve settled on a divorce lawyer and paid a retainer you will work with him or her to prepare and file the divorce processes. How much you pay your lawyer will depend on a lot of things; experience, expertise, complexity of your case and even the distance to high court. There is no cut and dried formula. 

Filing Divorce Processes in Nigeria

The first thing your lawyer should do is depose you of the facts of the case. A deposition is a narration of all your evidence and reasons for wanting a divorce and whatever else you want such as child custody, maintenance, settlement etc. If you are the person filing divorce processes you are referred to as the petitioner in all court document and your spouse is referred to as the respondent. Your deposition will be in the form of an affidavit of facts sworn to at the High Court. This document will form the basis of your case and as a general rule only plead what you can prove i.e what you have evidence for. Do not make claims you cannot prove or claims that the respondent can disprove. Your divorce affidavit needs to be comprehensive and exhaustive or your case could be thrown out by the court for not meeting minimum requirements of the law of evidence. Your divorce processes will include all evidence that you intend to bring to court to prove your claims and allegations and the names and addresses of any witnesses that you will call.  It will also include your plans for the maintenance of the children if you are asking for custody. The respondents reply will likewise include evidence and details of witnesses. 

Once all the documentation for the processes is complete your lawyer will file the processes with the High Court and you will be assigned a case number and a court. These processes will be filed in triplicate and one copy will be served on the respondent by the court bailiffs at the address that you have provided. A lack of service will render the proceedings void and will incur the wrath of the judge if discovered at any point in the proceedings. In one of my cases my clients husband tried to claim that she had been properly served and to seek a judgement in her absence. Unfortunately for him, the judge instructed that the parties go for a compulsory conference which is required under the Lagos State High Court Rules. A compulsory conference is a mediation exercise that seeks to find common ground between the parties to reduce the number of issues that they ask the court to decide on. My client only found out that her husband had filed a divorce process 6 months previously when his lawyers contacted me to inform her about the conference. The various states of the federation have different rules of court and your lawyer will tell you what the requirements are in the state where you file. 

Once the respondent has been served notice of your intention to seek a divorce he or she has 28 days within which to file a response. If a response is not filed within time or if service fails the court has the discretion to proceed with the case without the respondent. However, the courts are usually magnanimous and give as much time was is reasonable to allow the respondent to be served and to file a response. If there is evidence of service and there is no response the court may proceed with the trial in the absence of the respondent on the application of the petitioner’s lawyer. Where the respondent files within time or after an application for filing out of time is approved by the court, the petitioner has another opportunity to reply to the respondents reply. A respondent can also chose to file a counter claim if the respondent is of the opinion that the petitioners claim is significantly different from his or her own. In the event that the respondent files a counter claim during a divorce process the petitioner will have 28 days to respond to the counter claim. And a counter claim in considered a separate divorce process from the petitioners claims and will be considered separately. 

The exchange of claims, counter claims and responses can take up 8 weeks and after that the matter will be set down for hearing and a date will be given. It should be noted that sometimes a petitioner may want to file for an interim custody order while filing the divorce process. You may read more about how that is done here. Once a date is given for mention trial is set and the petitioner will present his air her case first, including giving evidence in chief in support of their divorce petition. Both the petitioner and the respondent and their various witnesses will be heard and cross examined. A good divorce lawyer will always go over what the client will say in court before the day in court and will have questions beforehand which they will practice to ensure that their client has the opportunity to say everything they need to say in favour of their divorce petition. 

In Nigeria a divorce trial can take as little as 6 months or as many as 5 years. In the case of an appeal it can even take 10 years or more. Once the court has finished taking evidence lawyers for both the petitioner and the respondent will give their final arguments and await the courts ruling.  The court will initially grant a decree nisi when it makes its ruling, if it grants the divorce petition and a decree absolute will be issued 3 months thereafter. The court could also deny the divorce petition. If either party is dissatisfied with the trial courts rulings (and there can be more than one) they can appeal, first appeal would be to the Court of Appeal and subsequently to the Supreme Court if they are still not satisfied with the ruling. To use a popular Naija saying ‘Final appeal is with God.” 

During the divorce trial and any subsequent appeals the parties will have to keep the situation quo ante, as it was at the time of filing the divorce petition and until final judgment is given. In other words there should be no change in circumstances during the trial, if the children of the marriage, if any, were with one of the parties at the start of the trial they should remain with that party till the trial is concluded. An interim custody order can ensure that this is the case. 

While this blog post has attempted to explain the divorce process in Nigeria there can still be various outcomes and delays and questions. If you have more questions you can book a private consultation with me here.