A CRITICAL STUDY ON THE HISTORICAL BACKGROUND OF DIVORCE AMONG CHRISTIANS IN IJEBULAND SINCE 1892
Background
Marriages in Nigeria take place under three legal systems (Center for Reproductive Rights 2003, 83): Islamic (Maliki school of law), civil (statutory law), and customary (tribal/traditional law) (ibid.; Denmark Jan. 2005, 68). In general, marriages in the north of the country are under Islamic law, while those in the predominantly Christian south (Country Reports 2004, Sec. 2.c) are under statutory law (Denmark Jan. 2005, 68). Even when couples marry under statutory law, customary law generally prevails in personal matters (ibid.).
Marriage between Christians in Nigeria can take place under civil law, customary law, or both civil and customary law (Rahmatian 1996). This Response therefore provides information on divorce under civil law and customary law, as well as general information on divorce between Christians in Nigeria.
Nigerian states that are predominantly Christian include Abia, Akwa Ibom, Anambra, Bayelsa, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Imo, Ondo, and Rivers (CSIS Mar. 2002). States in Nigeria that have a mixed Christian and Muslim population include Benue, Kaduna, Kogi, Kwara, Lagos, Ogun, Osun, Oyo, Plateau, and Taraba (ibid.).
The Igbo, also referred to as “Ibo” (Encyclopedia of the Third World 1992, 1436; L’Encyclopédie de L’Agora n.d.), located in Nigeria’s southeast (ibid.; Country Reports 2004 28 Feb. 2005, Sec. 5), are predominantly Christian (Encyclopedia of the Third World 1992, 1436). This ethnic group makes up between 10 and 15 per cent of the country’s total population (L’Encyclopédie de L’Agora n.d.).
The Yoruba, representing between 20 and 25 per cent of the country’s population (L’Encyclopédie de L’Agora n.d), are part Muslim and part Christian (Encyclopedia of the Third World 1992, 1436). This ethnic group is located in Nigeria’s southwestern states (Country Reports 2004 28 Feb. 2005, Sec. 5; L’Encyclopédie de L’Agora n.d.).
Grounds for Divorce
Quoting information obtained from the Visa Section of the British High Commission in Nigeria, the Report on Human Rights Issues in Nigeria, from a joint British-Danish fact-finding mission to Abuja and Lagos, Nigeria, notes that in Christian marriages, either spouse may seek a divorce (Denmark Jan. 2005, 70). However, divorce may only be sought on the grounds of infidelity (ibid.).
For Christian marriages that have taken place under civil law, the 1970 Matrimonial Causes Act governs divorce (Center for Reproductive Rights 2003, 83). According to this Act, both the man and the woman have the legal right to seek divorce, if the “marriage has broken down irretrievably” (Nigeria 1970, Part II 15 (2)). The spouse petitioning for a divorce must satisfy the court that the marriage has broken down irretrievably as a result of one or more of the following:
(a) that the respondent has wilfully and persistently refused to consummate the marriage;
(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
(e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
(f) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
(g) that the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act;
(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead (ibid.).
According to 28 April 2003 correspondence from the Executive Director of BAOBAB for Women’s Human Rights, grounds for divorce under civil law also include the “commission of rape, sodomy or beastiality” (see also Nigeria 1970, Part II 15 (3) (1a)).
The Report on Human Rights Issues in Nigeria, citing information obtained from the British High Commission in Nigeria, related that under customary law, both parties are also able to seek a divorce, and that a marriage can be dissolved for any reason (Denmark Jan. 2005, 71). Citing a law professor from the University of Arizona who is a native Nigerian, the Centre for Reproductive Rights indicated that customary law courts, however, will consider “adultery; cruelty; desertion; and impotence, sterility, or the presence of any reproductive health problem” as grounds for divorce (2003, 83).
Procedures and Length of Process
The high court in any Nigerian state, with the exception of Imo, has jurisdiction over the dissolution of marriages that have taken place under civil law (US 8 Dec. 2005). In Imo state, the Magistrate’s Court has jurisdiction (ibid.). In 2003 correspondence, the Executive Director of BAOBAB for Women’s Human Rights noted that filing a divorce petition is the procedure by which Christians in Nigeria obtain a civil divorce (28 Apr. 2003). The Executive Director further indicated that “no proceedings for divorce may be instituted within two years of a marriage without leave of court” (BAOBAB 28 Apr. 2003; see also Nigeria 1970, Part II 30 (1) & (2)).
A civil divorce is final once the high court granting the divorce issues a “Decree Absolute” (US 8 Dec. 2005). Other documents issued prior to the “Decree Absolute,” which mark the divorce process but do not indicate a final divorce, include the “Enrolment of Order,” the “Decree Nisi” [a separation agreement which presumes that the couple can still reconcile (Vanguard 14 Aug. 2004)], and the “Certificate of Decree Nisi” (US 8 Dec. 2005).
A Christian marriage under customary law is dissolved “non-judicially” (BAOBAB 28 Apr. 2003; Asylum Aid May 2003, 50) by the customary court in the area where the marriage occurred (US 8 Dec. 2005). The customary courts provide a divorce certificate to render the divorce final (ibid.). In Imo state, it is the Chief Magistrate’s Court that issues divorce decrees (ibid.).
According to the Executive Director of BAOBAB for Women’s Human Rights, customary law marriages are dissolved through the “unilateral action of a spouse,” where the divorce is deemed final upon the return of the “bride price” (BAOBAB 28 Apr. 2003). The Executive Director noted that this method of dissolving a marriage is, in some parts of Nigeria, “conferred only on the husband” (ibid.).
Among the Igbo, the dissolution of a marriage under customary law may involve negotiating and mediating between the families in an attempt to salvage the marriage (ibid.). If this process fails, then the “bride price” is returned and the marriage is considered dissolved (ibid.).
No information on the total length of the process for obtaining a divorce, under civil law or customary law, could be found among the sources consulted by the Research Directorate.
