MzAgams

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.

Many of my clients claim that their spouse has committed adultery and want to use it as grounds for a divorce. This post will look at adultery as a ground of divorce and what is necessary to establish that adultery has occurred and that the court should grant the petitioner a divorce on that ground. 

Under the Nigerian Matrimonial Causes Act MCA there is only one ground for divorce. According to section 15(1) of the Act, the marriage must have broken down irretrievably for the court to grant a divorce petition. 

Section 15(1) of the Matrimonial Causes Act, provides as follows:

“A petition under this Decree (Act) by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.

Section 15 (2)  of the Act goes on to give the eight ‘various species of the breakdown’ that prove that a marriage has irretrievably broken down and entitle a petitioner to a decree absolute dissolving a marriage. Section 15(2)(b) of the Matrimonial Causes Act states that: 

“ The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent”

Adultery is a criminal offence under the Penal Code of Northern Nigeria. Section 387 and 388. Adultery was defined by the Court of Appeal, in the case of Erhahon v. Erhahon, as consensual sexual intercourse between a married person and a person of the opposite sex other than the spouse. So the key elements of adultery are that intercourse must be consensual, that it must be with a person of the opposite sex and that there must be penetration, no matter how slight. Needless to say, any sexual intercourse without consent is rape and would fail to be considered as adultery by the court. Rape, however, is a nightmare to prove and there is no reason to assume that the burden of proof would be reduced simply because it is a defence in a divorce process. What has not been decided by a Nigerian court of competent jurisdiction is whether sexual intercourse with a person of the same sex will amount to adultery. Sexual intercourse in a legal sense has to include penetration of the vagina with the penis. In an English case, Corbett v Corbett, which has persuasive effect in Nigeria, and sex and sex between two men or two women was not adultery. It would be interesting to see how the Nigerian bench would interpret a situation. Note that in Nigeria same sex marriage is illegal and sodomy is a criminal offence. However, not all same sex relationships involve sodomy or marriage. An interesting legal conundrum to be sure. 

Proof of Adultery in Divorce Proceedings 

Section 82 of the MCA establishes the standard of proof necessary to prove adultery and other matrimonial offences. 

(1) For the purposes of this Act, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the court.

(2) Where a provision of this Act requires the court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.

Adultery is usually established through circumstantial evidence. Proof of adultery  is rarely direct and the court has accepted undue familiarity coupled with opportunity , improper behaviour and suspicious circumstances, confessions, admissions and general cohabitation as proof of adultery.

Some of the ways in which adultery can be inferred include, 

1. Evidence of disposition and opportunity;
2. Cohabitation: where a married man/woman lives together under
   the same roof with another person, adultery is strongly presumed. 
3. Confessions: An admission of adultery is proof of same. 
4. Entry in Register of birth: An entry into the register of birth naming someone other than the legal spouse as the other parent 
5. Conviction for sexual related offences: When a married man is convicted for raping or committing any sexual offence against someone who is not his wife, it is strict proof of adultery.

The standard of proof for proving adultery is by a preponderance of evidence and not proof 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 favour 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. 

This position was upheld in Okaome V Okaome. However, in practice courts are very careful in weighing evidence of adultery in matrimonial cases and seek to be ‘reasonably satisfied’ and not ‘merely satisfied’ that adultery actually occurred. In Anoka v Anoka, Oputa J as he then was held that the nature of matrimonial cases made it necessary for the court to expect the same degree of strictness of proof required to prove a criminal offence. In Oluvide v. Oluvide, the court held that the standard of proof was higher than the balance of probabilities and even higher when trying to prove adultery.

For instance, in Erhahon v. Erhahon it was held that, in divorce proceedings, for a case of adultery to succeed, there must be penetration of the woman by the man although, the act of sexual intercourse need not have been complete. Thus, the court held that, the fact that the 1st and 2nd respondents were caught and photographed sitting down and lying in bed together, was not sufficient to prove that they had sexual intercourse and thus committed adultery. In Komolafe v. Komolafe, the fact that the respondent saw a lady clad in a wrapper, early in the morning at the petitioner’s house was not sufficient to prove adultery and according to the court, proved only that a friendship existed between the petitioner and the lady in question. In Obajimi v Obajimi the court rejected the petitioners claim of vernal disease as proof of adultery since the petitioner did not provide medical evidence to support the claim. 

Intolerability 

What is intolerability? 

Intolerability adj. Impossible to tolerate or endure; unbearable: intolerable agony.

Under the MCA adultery simpliciter  is not sufficient grounds for divorce.  Mere proof of adultery without a plea of intolerability is not sufficient. ’Intolerability’ is a key element of adultery as a ground for divorce in Nigeria.  A petitioner relying on adultery as grounds that a marriage has broken down irretrievable must also prove that they find it intolerable to live with the respondent. Intolerability must be proven in addition to proving that adultery occurred. In other words, the Court may refuse accept adultery as proof of intolerability.  In a decided case the court refused to grant a divorce petition on the grounds of adultery because the parties had regular sexual intercourse after the alleged adultery. 

Joining Parties In Divorce Proceedings Grounded on Adultery 

When filing a divorce process and using adultery as a grounds for the petition the person with whom the adultery is alleged to have taken place has to be named as a co-respondent in the petition or the petition will fail. It is also necessary to provide this persons address for service. In some cases the co-respondents refuse to appear or respond to the petition. This is not surprising. No one wants to be involved in the dissolution of a marriage. However, not responding can lead to adverse ruling against such co-respondents. 

Section 31 of the Matrimonial Causes Act provides that either party to a marriage can claim damages for adultery if such an act is not condoned and was not perpetrated for up to three years before such a claim is made. In a recent case, a co-respondent refused to acknowledge or reply to the petition in which they were named. In the ruling of the court damages were awarded against the co-respondent who remains a judgement debtor to the petitioner.  In other words, do not ignore a court summons, grand defend yourself. 

Damages for adultery are compensatory and not punitive. They are meant to redress perceived injury to a  petitioner’s honour and feelings, damage and injury to family life and the value of the adulterous spouse to the claimant. 

Conclusion

What all this means is that it may be difficult or even impossible to ground a divorce process on adultery. A lawyer will be able to advice you better and evaluate your evidence. If you would like a consultation with me you can book one here.