Divorce is when a marriage is lawfully brought to an end either by a court or other competent authority.
Christian and Civil marriage can be dissolved the same way and that is through court by a husband or wife filling a petition asking court to dissolve the marriage.
Process of petitioning for divorce:
- A husband or wife get a lawyer.
- The lawyer will help them request the court for divorce by writing and presenting a petition to court.
- The power to handle divorce cases is before the High Court where either one or both of the married people are not Africans. Where both of the married people are Africans, the power to handle the divorce is with the Chief Magistrates Court.
Note: In practice, a petitioner will consider the value of the estate likely to be divided upon divorce or the alimony they are seeking to determine whether to go to the High Court. However, most divorce petitions are lodged in the High Court because of its original
unlimited jurisdiction over all matters.
For one to petition for divorce of a Christian and Civil marriage, one must base on any of the following grounds:
- Where a spouse commits (incestuous) adultery (Breach of marital fidelity through extramarital sexual intercourse);
- Where a husband has changed his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another women;
- Bigamy with adultery;
- Where a man marries another woman with adultery;
- rape, sodomy or bestiality;
- Desertion for a period of 2 years and above.
- SPECIAL CASE: Irretrievable breakdown of marriage; A person who is requesting the court for a divorce can also support his or her case by showing that the other person is guilty of conduct that has damaged the marriage, leading to break down of the marriage beyond restoration. It is not a ground of divorce, but may be used by a person who is requesting for divorce to make out a strong case.
For one to petition for divorce of a Islamic marriage, one must base on any of the following grounds:
- Talaq: A husband files divorce divorce on grounds of adultery; insubordination and disobedience; unreasonable denial of sexual intercourse by the wife.
- Khul: A wife is unwilling to continue with a marriage on grounds of sexual dissatisfaction on the wife’s part; failure of the husband to maintain his wife; cruelty to the wife; desertion by the husband for at least 3 months.
- Mabaraah: A wife and husband can obtain divorce if they mutually agree to terminate the marriage and have worked out financial settlements.
- Lian: This is divorce by the court on grounds of adultery (Breach of marital fidelity through extramarital sexual intercourse).
- Faskh: This is divorce by the court to protect the wife because of fear that her husband will injure her; when her husband has deserted her; where it becomes known that the husband is related to her; where she didn’t consent to the marriage or is underaged; where sexual obligations are not fulfilled.
How is a customary marriage brought to an end?
After divorce, a woman is entitled to maintenance. A wife may apply to court requesting for alimony from the husband. The court may decide for alimony to be paid in a lump sum or yearly or monthly or weekly for any period when the wife is alive. Court may decide that the alimony be paid to the wife or to any one else.