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By Sandra Adeniran, Principal Partner

Is your marriage over? The law in Nigeria doesn’t see it that way until specific conditions are met. Contrary to popular belief, there is technically only one ground for divorce: the irretrievable breakdown of the marriage. To get a court to grant a divorce, you must prove this breakdown by establishing at least one of eight specific facts defined in the Matrimonial Causes Act. This means you can’t simply state you have “irreconcilable differences.” The court requires concrete proof that your marriage has collapsed based on these legally recognized situations.

This article breaks down each of the eight facts that constitute the legal grounds for divorce in Nigeria. We have structured this list based on the provisions of Section 15(2) of the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004. For each fact, we will examine the precise legal definition, the type of evidence required by the courts, and the practical challenges you might face. Understanding these distinctions is the first step in navigating the divorce process in Nigeria; for a comprehensive guide, see our article on the process.

1. Wilful and Persistent Refusal to Consummate the Marriage

Consummation is the first act of sexual intercourse after the marriage ceremony. For this to be a valid reason for divorce, the refusal must be both “wilful” and “persistent.” A one-time refusal is not enough. The petitioner must show that their spouse made a conscious and definite decision not to consummate the marriage and has stuck to that decision over time, despite requests to do so. It is not applicable if the refusal is due to a physical inability (which could make the marriage voidable) but must stem from a deliberate choice.

This ground is distinct because it addresses a fundamental aspect of the marital contract that is presumed from the outset. The burden of proof lies entirely on the petitioner to demonstrate the respondent’s settled and unwavering refusal. Evidence can include communication records showing requests and refusals or testimony about the living situation. It’s a sensitive area of law where the court treads carefully, but it provides a clear path for dissolution when a marriage has not truly begun in the physical sense.

• Best for: Marriages where, for no medical reason, one party has consistently refused to have sexual intercourse with the other since the wedding.

Watch out for: This ground is unavailable if the marriage has been consummated even once. Proving a persistent and* wilful refusal can be difficult without clear evidence.

2. Adultery and Intolerability

This is perhaps the most well-known, yet often misunderstood, ground for divorce. To succeed, the petitioner must prove two things: first, that the respondent has committed adultery, and second, that the petitioner finds it intolerable to live with the respondent as a result. The act of adultery on its own is not sufficient. The law links the act directly to the petitioner’s state of mind, making it a subjective test. What one person finds intolerable, another might not.

The standard of proof for adultery is high, approaching the “beyond a reasonable doubt” standard used in criminal law, even though divorce is a civil matter. This differs significantly from other civil proceedings, such as those in criminal law, where the burden is much higher. Direct evidence like a photograph or video is rare. Therefore, courts often rely on circumstantial evidence, such as a spouse having a child with another person, or being found in a hotel room with someone of the opposite sex in compromising circumstances. The petitioner must file within a specific timeframe after discovering the adultery; otherwise, the court may conclude they have condoned the act.

• Best for: Situations with strong, compelling evidence of infidelity, such as a child born outside the marriage or clear-as-day proof of an affair.
• Watch out for: The high burden of proof. Mere suspicion, flirtatious messages, or opportunity alone are not enough. You must prove both the act and your intolerance of it. According to a study on marital instability, infidelity remains a significant factor in divorce petitions across Nigeria.

Many people think you can just tell a judge you have ‘irreconcilable differences.’ In Nigeria, the law is far more specific. You must prove one of eight established facts to demonstrate the marriage has broken down irretrievably.

3. Unreasonable Behaviour

This is the most common fact used to establish grounds for divorce in Nigeria. The legal test is whether the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them. Unlike adultery, the focus isn’t on a single act but often a course of conduct. The behaviour does not need to be malicious, but its effect on the petitioner must be significant.

The scope of “unreasonable behaviour” is broad and can include physical violence, verbal abuse, constant criticism, financial recklessness, drug or alcohol abuse, or even a persistent lack of affection and emotional support. The court assesses the behaviour’s impact on the specific petitioner, considering their personality and circumstances. What might be tolerable for one person could be grounds for divorce for another. A cumulative series of minor incidents can collectively amount to unreasonable behaviour. Evidence is key and can include witness testimony (from friends, family, or domestic staff), medical reports in cases of abuse, police reports, and financial records.

• Best for: A wide range of situations involving domestic abuse, cruelty, financial irresponsibility, addiction, or a pattern of conduct that has made the marriage unbearable for one spouse.
• Watch out for: The behaviour must be more than the ordinary “wear and tear” of married life. The court will not grant a divorce for trivial complaints or simple incompatibility.

4. Desertion

Desertion occurs when one spouse leaves the other without consent and without good cause, with the intention of bringing the marital relationship to a permanent end. To use this as a ground for divorce, the petitioner must prove that the desertion has been continuous for at least one year immediately preceding the filing of the petition. The law requires proof of four key elements: the fact of separation, the intention to desert (animus deserendi), the absence of consent from the deserted spouse, and the absence of any just cause for leaving.

“Constructive desertion” is also recognized. This happens when one spouse’s behaviour is so intolerable (e.g., severe abuse) that it forces the other spouse to leave the matrimonial home. In such a case, the spouse who created the intolerable environment is considered the deserter in the eyes of the law. Proving desertion requires showing a clear and uninterrupted period of absence and an intention to end the marriage, which can be inferred from the circumstances, such as the spouse setting up a new home with a new partner. The legal framework around desertion is detailed in the Matrimonial Causes Act of 1970, which remains the principal legislation governing divorce across Nigeria.

• Best for: Cases where one spouse has physically abandoned the marriage for at least a year with no intention of returning.
• Watch out for: If the spouses mutually agreed to separate, it is not desertion. Also, if the departing spouse had a very good reason to leave (like fleeing abuse), it may not qualify.

5. Living Apart for Two Years (with Consent)

If a couple has lived separately and apart for a continuous period of at least two years and the respondent does not object to the divorce being granted, this can be used to prove irretrievable breakdown. This is one of the “no-fault” grounds for divorce in Nigeria. The key elements are the continuous two-year separation and the consent (or lack of objection) from the other spouse.

“Living apart” means more than just being in different locations; it implies that the marital relationship has ceased. The couple must be living as two separate households, even if under the same roof. For instance, if they sleep in separate rooms, do not share meals, and effectively lead separate lives, a court may find that they are “living apart.” This ground is designed to provide a less acrimonious path to divorce for couples who mutually agree the marriage is over. Our experience as a leading law firm in Nigeria shows this can be a cost-effective and emotionally less draining option when both parties are aligned.

• Best for: Amicable separations where both parties agree the marriage is over and are willing to wait two years to formalize the dissolution.
• Watch out for: If the respondent objects to the divorce, this ground cannot be used. The two-year period must be continuous and immediately precede the filing of the petition.

Proving adultery requires more than suspicion. The standard of proof is high, often demanding direct or strong circumstantial evidence that is notoriously difficult to obtain.

6. Living Apart for Three Years

Similar to the previous ground, this fact relies on a period of separation. However, if the couple has lived separately and apart for a continuous period of at least three years, the consent of the other party is not required. This provides a unilateral path to divorce for a spouse who has been separated for a significant length of time, regardless of whether their partner agrees to the divorce.

This three-year period allows the court to infer that the marriage has truly broken down, even if one party is unwilling to admit it or objects to the divorce. As with the two-year ground, the petitioner must prove that they were “living apart” in the legal sense for the entire continuous period. This provision ensures that a person is not trapped in a defunct marriage indefinitely simply because their estranged spouse refuses to cooperate. National Bureau of Statistics data indicates a growing number of individuals formally identify as separated, highlighting the social reality this legal ground addresses.

• Best for: Situations where one spouse wants a divorce after a long separation, but the other spouse is uncooperative, cannot be found, or refuses to consent.
• Watch out for: The three-year period must be continuous. Any significant period of reconciliation where the parties resume living together as a married couple can reset the clock.

7. Failure to Comply with a Decree of Restitution of Conjugal Rights

This is a less common ground. It involves a two-step process. First, if one spouse has left the other without just cause, the abandoned spouse can petition the court for a “decree of restitution of conjugal rights.” This is a court order compelling the deserting spouse to return to the matrimonial home and resume normal marital life. It is rarely used in modern practice as courts are reluctant to force unwilling partners to cohabitate.

If the court grants the decree and the respondent fails to comply with it for a period of one year or more, that failure then becomes a fact upon which a petition for divorce can be based. It essentially converts a desertion-type situation into a different, more formal ground for divorce by involving a prior court order. Its infrequent use is partly because it’s a protracted process and other grounds like desertion or living apart are more direct. Legal scholars have often debated the utility of this decree in modern family law, with many viewing it as an anachronism, as noted in various Nigerian law journals.

• Best for: A very specific and rare scenario where a deserted spouse first wants to make a formal, court-ordered attempt at reconciliation before proceeding to divorce.
• Watch out for: This is a lengthy and often impractical route. Most legal practitioners would advise using desertion or another ground instead.

8. Presumption of Death

This final ground applies in tragic circumstances where one spouse has been absent for such a long time and in such circumstances that they are presumed to be dead. The petitioner can ask the court to grant a decree of presumption of death and a decree for the dissolution of the marriage.

The court must be satisfied that there is reasonable evidence to believe the missing spouse is deceased. This usually requires showing that the person has been missing for at least seven years, that they have not been seen or heard from by those who would be expected to hear from them (like close family), and that all due inquiries have been made to find them. This process allows the remaining spouse to legally end the marriage and move on with their life, remarry, and deal with administrative matters concerning the absent spouse’s estate. While this involves family law, the complexity of asset management can sometimes intersect with other legal areas like Oil & Gas law when significant business interests are involved.

• Best for: When a spouse has disappeared without a trace for many years, and there is no evidence to suggest they are still alive.
• Watch out for: The court requires thorough evidence that reasonable efforts were made to locate the missing person. This is not for cases where you simply lost contact.

Summary of Grounds for Divorce

Frequently Asked Questions

What is the difference between divorce under the Act and customary/Islamic divorce?

Divorce under the Matrimonial Causes Act applies to statutory marriages (often called “court” or “registry” marriages) conducted in a licensed place of worship or a marriage registry. Customary and Islamic law have their own distinct rules and procedures for dissolving marriages contracted under their respective traditions. A marriage contracted under statutory law can only be dissolved by the High Court under the Act.

How long does a divorce take in Nigeria?

The timeline varies greatly. An uncontested divorce based on two years of separation with consent can be relatively quick, potentially concluding within 6-9 months. However, a contentious divorce, especially one involving disputes over children or assets or requiring proof of grounds like adultery, can take several years to resolve in the Nigerian court system.

Can I get a divorce in Nigeria if we were married abroad?

Yes, you can petition for divorce in Nigeria even if you were married in another country, provided the marriage is a monogamous one. The key requirement is jurisdiction. You or your spouse must be a Nigerian citizen or be domiciled in Nigeria at the time you file the petition. Domicile means that you consider Nigeria your permanent home.

What is a Decree Nisi and Decree Absolute?

A divorce is a two-stage process. The court first grants a Decree Nisi. This is a provisional decree of divorce that does not formally end the marriage. After a waiting period of three months, the petitioner can apply for the Decree Absolute, which finalizes the divorce and legally ends the marriage. The waiting period allows for any last-minute reconciliations or for any interested party to show cause why the divorce should not be finalized.

Who gets custody of the children in a divorce?

The primary consideration for the court in awarding custody is the best interest and welfare of the child. The court can grant sole custody to one parent, joint custody to both, or split custody (e.g., one child to each parent, though this is rare). Factors considered include the child’s wishes (depending on their age), the parents’ ability to care for the child, living arrangements, and any history of abuse or neglect.

Does it matter who files for divorce first?

Legally, there is no significant advantage or disadvantage to being the one who files the petition (the petitioner) versus the one who responds (the respondent). The court’s decisions on financial settlements, property division, and child custody are based on the facts and the law, not on who initiated the proceedings.

How is property divided in a Nigerian divorce?

The court has the power to make orders for the settlement of property in a way it deems just and equitable. It is not an automatic 50/50 split. The court will look at the direct and indirect contributions of each party to the acquisition of the property during the marriage. This includes financial contributions as well as contributions as a homemaker and parent. Proving contributions is crucial.

Deciding to end a marriage is a momentous step, and understanding the legal framework is essential. If you are contemplating a divorce, the complexities of proving these grounds and navigating the court system require careful legal guidance. Contact a qualified legal professional to discuss your specific circumstances and explore your options.