Under the matrimonial cauases act there is only one ground for divorce. Under section 15(1) the marriage must have broken down irretrievably, Section 15 (2) goes on to give the ‘various species of the breakdown’ that would entitle a petitioner to a decree absolute dissolving a marriage.
Adultery by the respondent to a petition for the dissolution of a marriage will entitle the petitioner to a decree of dissolution. Adultery is the consensual sexual relationship between two people one of whom is married at the time.
The legal elements of adultery are sexual intercourse (penetration), consent and a subsisting marriage of one of the parties. Under the MCA ‘intolerability’ became a key element of adultery as a ground for divorce in Nigeria. Pre 1970 adultery simpliciter was sufficient grounds for divorce. Now a petitioner relying on adultery as grounds to show that a marriage has broken down irretrievable must also prove that they find it intolerable to live with the respondent.
Adultery is usually established through circumstantial evidence. Proof of adultery is rarely direct and the court has accepted undue familiarity coupled with opportunity , improper behavior and suspicious circumstances, confessions, admissions and general cohabitation as proof of adultery.
Infamously the Nigerian Court of Appeal ruled in 1997 that photographs showing a naked couple did not prove that intercourse took place between them and did not establish adultery. Where the parties accused of adultery have cohabited adultery will be presumed and bigamy is prima facie evidence of adultery.
The standard of proof for proving adultery is by a preponderance of evidence and not beyond reasonable doubt.
preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial.
It has been held that there is no necessary link between adultery and intolerability in s.15(2)(b). The ‘fact’ is established if the petitioner genuinely finds it intolerable to live with the respondent, even if the adultery has not played any significant part in the breakdown of the marriage. In other words, the Court refused to construe the section as if it required proof that: ‘the respondent has committed adultery by reason of which the petitioner finds it intolerable to live with the respondent.