MzAgams

How to Get a Divorce in Nigeria – Grounds for Divorce: Adultery & Intolerability

Posted on May 12, 2012. Filed under: Family Law | Tags: adultery, burben of proof, divorce, family law, intolerability, law, Matrimonial causes, Nigeria, women, women's rights |

There is only one ground for divorce in Nigeria, that the marriage has broken down irretrievably. There are 8 different ways to establish irretrievable breakdown. One of those is adultery.

You would think no woman married to a Nigerian man would ever have trouble getting a divorce. Nigerian male sexual entitlement is cliche. So is female snooping. Snoopy wives are smart wives only if they are compiling the evidence for a divorce.

Personally I never could understand the snoopy wives that looked for and found incriminating evidence only to immediately confront their man, fight and then put him in the dog house as in deny him sex till he begs forgiveness or buys her an expensive present.

If I were to start snooping its because I’m compiling evidence good enough to take before a court of law. Certainly not snooping for the sake of snooping. So what is evidence good enough for a court? What would convince a judge that adultery happened?

Adultery is voluntary and consensual sexual relations by a party to a marriage with a third party during the marriage. Note: rape or sexual intercourse while insane or impaired by alcohol or drugs is not voluntary and does not constitute adultery.

Adultery is usually proven through circumstantial evidence like familiarity and opportunity, sexually transmitted disease, visits to brothels, confessions or birth of a child, DNA tests and cohabitation with other than spouse. Direct evidence is rare.

The case law reveals a lot of gender bias. There are lots of cases cited about women having a child at a time her husband was unavailable to have caused her pregnancy. I’m on the look out for cases where a man having a child is presented as proof of adultery on his part in an action for divorce.

In one case it was held reasonable to assume familiarity and sexual intercourse between a woman and man that were seen returning late from a night club and kissing in front of her home. However in another case it was held photographs of a naked man and woman lying on top of each other did not prove sexual intercourse happened.

So witness evidence has more weight than photographic evidence unless presumably its of the pornographic variety. You will need reliable witnesses. The type that everyone believes before they even say anything. Earnest looking. Mature. Too proud to accept money to lie.

A cynical person might say you won’t find them and may even suggest (gasp in horror) you bribe Uncle Nasiru and Uncle Bitrus to say they saw Mama Nkechi kissing one man under the mango tree. I’m sure many a divorce in Nigeria is procured with methods just as deceptive and creepy. Don’t go there.

Time to step up ladies. We have an uncanny sixth sense that tells us when our man is cheating. A strange scent on him that stays no matter what he does to wash it off. Our conscious mind doesn’t always know it even. Its primal and wild. And it sets us sniffing to catch the scent.

If you’re looking to get a divorce collect and start to store the evidence when you go snooping around. Forward emails and SMS to and from lovers to your in box, do try not to leave an obvious trace. If you find her number and call her to leave your man alone record it. You might get lucky and she’ll say something admitting the affair.

And yes, if you can sneak up on the lovers photograph them having sex at that hotel down the road from your house. Shameless man. Couldn’t even go far away to have his sleazy affairs. That’s okay, that means there are probably lots of witnesses in the neighbourhood, you should find one or two willing to testify.

Avoid the witnesses that expect to be paid ‘transport’ which is a euphemism for bribe. They will say anything you want them to but will collapse under cross examination because they will over embellish the truth.

Avoid the religious conservatives and fanatics. They’ll preach the word of God that said you should not divorce but should bear your marriage like a martyrs cross. That attitude can get you killed. They’ll never come to court anyway so don’t waste your time..

Look for witnesses that are genuine in their sympathy for you and sincere in wanting to help.. You’ll always find one at least. If you look. Look hard but be aware some may not want to be seen to be involved in the ‘break up’ of a marriage. Assure them its broken and dead already and this is the funeral.

If you’re not good at snooping around (and a lot of us aren’t) outsource the evidence gathering to a trained professional or private eye. Yes we do have them, they’re just not in the yellow pages. Private investigators are a growing trend in Nigeria. If you can, use them. Ask around.

If you know the area boys and are good with them they will help you too but may lack credibility in court. If its photographic or video evidence the person who collected it should appear in court recounting the details of how he or she got the evidence and the events shown.

The standard of proof is by preponderance of evidence and not beyond reasonable doubt. Parties to a marriage are also entitled to damages from the adulterous spouse assessed according to the financial support lost due to the breakdown of the marriage as a result.

If you’ve been married a while and your husband has been having adulterous affairs and you seemed by your conduct to tolerate them the court may conclude you condoned the adultery unless you can also prove you find it intolerable to live with your spouse as a result.

Don’t forget to get names and addresses of the women you have reasonable grounds to believe are having adulterous affairs with your husband. They must be included in the action as co-respondents. They will need to be served court processes and may also be liable to you for damages. Get as much info as possible.

Of course here we can go into what constitutes a broken marriage and this will depend on why you got married and why you stay married. I guess the definition of a broken marriage will differ depending on whether you married for love and companionship or for family and security.

For a lot of Nigerian women adultery by their husband is tolerated and is not considered enough reason for a divorce unless it is so obvious and so detrimental to her and her children by which time it may be to late. ‘You want to move out so the other woman can finally move in?’

Like I said already it all depends on what you want from life and from marriage. On that I cannot advice but if you don’t file when you see your husband in an affair that actually threatens your home and life you may find yourself thrown out before you can secure your rights.

Note that for adultery to prove irretrievable breakdown of marriage it need only happen once and it has to have happened in the three years before your petition. Also a petitioner (that is the person asking the court for a divorce, the other fellow is the respondent) cannot use their own adultery as proof.

Once you’re able to establish adultery you have to also prove that you find it intolerable to live with your adulterous spouse. What matters is what you find intolerable and not what ‘a reasonable man’ would feel.

How do you establish intolerability? We’ll look at that in my next post.

Ciao

Posted by MzAgams with WordPress for BlackBerry.

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