Defenses and Bars to a Petition for Divorce
Introduction
Marriage is a solemn union that binds two individuals together under the law. However, not all marriages endure, and when relationships break down irretrievably, one or both parties may seek a divorce. In Nigeria, divorce is governed by the Matrimonial Causes Act, and the person initiating the process must present valid grounds for the dissolution of marriage. But what happens when the other party contests the petition?
This is where defenses and bars to a petition for divorce come into play. A respondent can raise specific legal defenses to oppose or delay the divorce. This article explores the various defenses and statutory bars to a divorce petition under Nigerian law, their applicability, and judicial interpretations.
Legal Framework for Divorce in Nigeria
The principal law governing divorce in Nigeria is the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria 2004. It applies mainly to statutory marriages—marriages conducted under the Marriage Act and registered in a recognized registry.
Under this Act, there is only one ground for divorce:
That the marriage has broken down irretrievably.
This ground must be proved by establishing one or more of the eight facts listed in Section 15(2) of the Act, such as adultery, unreasonable behavior, desertion, or separation.
Once a petition is filed, the respondent may oppose it by raising defenses or relying on bars provided by the law.
What Are Defenses and Bars in Divorce Proceedings?
A defense is a legal argument or set of facts presented by the respondent to challenge or disprove the petitioner’s claim.
A bar is a statutory provision that prevents the court from granting a divorce under specific circumstances, even if the facts support it.
Understanding the differences and application of these two concepts is essential for both petitioners and respondents.
Statutory Bars to a Divorce Petition
The Matrimonial Causes Act provides certain limitations or “bars” to prevent frivolous or premature divorce proceedings. These include:
1. The One-Year Bar (Section 30 MCA)
Provision: A party cannot file for divorce within two years of the marriage unless the court grants leave (permission) to file earlier.
This is often referred to as the “two-year rule.” However, in practice, the court may grant leave to file within this period in exceptional hardship or exceptional depravity cases.
🔹 Case Law:
In Mbakwe v. Mbakwe, the court emphasized that the purpose of the two-year rule is to protect the sanctity of marriage and encourage reconciliation in the early stage
2. Collusion Between Parties (Section 82 MCA)
Divorce cannot be granted if it is found that the parties colluded or conspired to fabricate evidence to obtain a divorce.
This includes:
Arranging false claims of adultery
Agreeing to stage desertion
Falsely claiming unreasonable behavior
The court requires proof that the facts are genuine and not fabricated.
3. Connivance and Condonation (Section 34 MCA)
These two bars operate as defenses as well:
a. Connivance:
When the petitioner encouraged, consented, or facilitated the misconduct (e.g., adultery), they cannot rely on it as a ground for divorce.
b. Condonation:
If the petitioner, knowing of the misconduct, forgave the spouse and resumed cohabitation, they are barred from using that act as a ground for divorce later.
🔹 Example:
A husband cannot petition for divorce on grounds of adultery if he was aware of the affair and continued to live with his wife as though nothing happened.
Legal Defenses to a Divorce Petition
The respondent may also raise defenses that do not bar the petition entirely but are strong enough to persuade the court to dismiss the application.
Here are the major defenses available:
1. Denial of Allegations
The simplest form of defense is to deny the factual basis of the petition.
Examples:
Denying allegations of adultery or providing an alibi
Denying desertion or explaining lawful absence (e.g., work relocation)
Denying unreasonable behavior or showing that the petitioner exaggerated or fabricated claims
This type of defense focuses on rebutting the evidence presented by the petitioner.
2. Provocation
In some cases, the respondent can argue that their behavior was in response to the petitioner’s provocation.
🔹 Example:
If the wife exhibits violent behavior after enduring years of psychological abuse, she may justify her actions as provoked.
This defense may influence the court’s decision on:
Whether the conduct was truly “unreasonable”
Whether the marriage has irretrievably broken down
3. Reconciliation Attempts
The respondent may argue that genuine reconciliation efforts were in progress, and the petitioner did not give it a fair chance.
Evidence may include:
Marriage counseling attendance
Pastoral mediation
Family interventions
If successful, this could lead the court to adjourn proceedings or recommend reconciliation, especially if children are involved.
4. No Intention to Permanently Separate
In separation-related petitions, the respondent may argue that:
There was no intent to permanently separate
The separation was temporary or due to circumstances like employment or illness
If the intent to separate permanently is absent, the petitioner cannot rely on that separation as a ground.
5. Fraud, Duress, or Undue Influence
The respondent may challenge the validity of the marriage or consent to divorce on grounds that:
The marriage was fraudulently entered
The respondent was coerced into agreeing to the divorce
There is undue influence
These may not bar the petition outright but can be used to discredit the petitioner’s motives and highlight injustice.
Impact of Defenses on Court Decisions
Courts in Nigeria consider both the legal arguments and the moral conduct of parties. A successful defense can result in:
Dismissal of the petition
Adjournment for reconciliation
Modification of reliefs sought (e.g., child custody, maintenance)
Refusal to dissolve the marriage despite proved facts (especially where collusion or condonation is found)
The judge exercises discretion guided by equity, good conscience, and public policy.
Judicial Approach and Notable Cases
1. Ibrahim v. Ibrahim (2007)
The court held that mutual forgiveness of adultery meant that the ground was condoned, and the petition could not stand.
2. Okwueze v. Okwueze
The petitioner’s attempt to deceive the court with fake evidence of separation was ruled as collusion, and the divorce was denied.
3. Ekerebe v. Ekerebe (1999)
The court emphasized that separation without animus deserendi (intention to desert) does not amount to desertion.
Important Tips for Respondents in Divorce Cases
Seek legal representation early to understand your rights
Gather evidence to support your defense—text messages, witnesses, counseling records
Be aware of time limits and court procedures
Avoid collusion or trying to “stage” a divorce
Respect court orders and show willingness to cooperate
Conclusion
While filing for divorce in Nigeria requires proof that a marriage has broken down irretrievably, the law equally provides safeguards and protections for respondents through defenses and bars. These legal mechanisms ensure that divorce is not granted lightly or unjustly.
Understanding these defenses—from statutory bars like the two-year rule, connivance, and condonation, to factual defenses like denial of allegations or reconciliation efforts—is essential for any party involved in a divorce proceeding.
At Chaman Law Firm, we offer expert guidance and representation in matrimonial matters, helping both petitioners and respondents navigate the complexities of divorce law in Nigeria with dignity, clarity, and legal precision.
Contact us
Facing a divorce petition in Nigeria? Don’t navigate it alone. Understanding the defenses and legal bars to a petition for divorce can protect your rights, reputation, and assets.
At Chaman Law Firm, we specialize in providing strategic legal counsel in family law and divorce cases. Whether it’s challenging false allegations, invoking legal bars, or defending your position, our experienced lawyers will stand by you every step of the way.
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✉ Email: chamanlawfirm@gmail.com
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