Grounds for Divorce: Conviction for Grievious Bodily Harm or Attempted Murder

One of the most odious provisions of the Nigerian Matrimonial Causes Act is Section 16 which seeks to define the circumstances a petitioner must establish to prove a marriage has broken down irretrievably.

In the various sub sections it says among other things that a spouse must be insane at least 5 years, a habitual drunk or addict at least 3 years, a habitual convict.

Section 16 places an extremely heavy burden on the petitioner. A divorce lawyer has to get creative in their use of other grounds. Living apart for 2 or 3 years is a much used ground. So is constructive desertion which provides that a petitioner can construe desertion from the respondents behaviour and does not have to rely on physical lack of presence.

If your spouse is behaving in a way and manner that you can no longer be expected to live with him or her then you could ground your divorce petition on constructive desertion.

In choosing ground for divorce its important to put the clients needs first. I’ve had to change the grounds of divorce from a clear cut adultery to a less certain prior conviction ground because the petitioner did not want a relative to appear as a witness.

While grounds for divorce are set out in the MCA some common law grounds are still acceptable. Cruelty is a common law ground for divorce and is most effective in domestic violence cases where there has been no prior conviction of the abuser.

I’ve noticed media reports of men successfully citing threats to health, not cooking, and denial of sex as evidence of cruelty to ground a divorce.

A progressive situation will be no contest divorces where the parties don’t need to join issues. We’ll get there. We’re already headed in that direction.

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