In this interview, family and property lawyer Aroh Ebelechukwu speaks about marriage, divorce, and property rights in Nigeria.
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PT: There is a growing perception that divorce is rising in Nigeria. From a legal standpoint, what factors contribute to this trend?
Ebelechukwu: Yes, divorce cases have increased significantly in Nigeria compared to a decade ago. While it seems more prevalent among celebrities due to media exposure, everyday people are also experiencing higher divorce rates. Several factors contribute to this trend, primarily economic hardship and increased awareness through the Internet. Financial instability often strains marriages, and with more access to information, individuals—especially women—are less tolerant of marital issues. Social changes, including shifting cultural expectations and greater legal access to divorce, have also played a role. Additionally, urbanisation and migration have distanced families from traditional support systems, making it harder to sustain troubled marriages.
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PT: Can you walk us through the legal process of filing for divorce in Nigeria?
Ebelechukwu: The divorce process depends on the type of marriage. In Nigeria, there are statutory, customary, and Islamic marriages. For statutory marriages, the couple must be married for at least two years unless there’s extreme hardship. Divorce is granted only if the marriage has broken down irretrievably, based on the Matrimonial Causes Act. A petition is filed at the High Court, and the petitioner must prove one of eight legal grounds, such as adultery or desertion. After filing, the respondent is served, and the court may order reconciliation before granting the divorce.
PT: Some Nigerians believe that filing for divorce is simply submitting papers. How often do courts reject petitions, and why?
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Ebelechukwu: Courts reject petitions frequently. Divorce is not automatic; the petitioner must provide legally admissible evidence that the marriage has broken down irretrievably. If the evidence is weak or unproven, the petition is dismissed. For example, in Ibrahim v. Ibrahim, the petitioner failed to prove allegations of adultery and separation, leading to dismissal. Even uncontested cases require sufficient proof. The court ensures that all claims meet legal standards and that due process is followed. If documentation is incomplete or allegations are vague, the case will likely be rejected or prolonged with additional hearings.
PT: Many Nigerians assume a church wedding means they are legally married. How many of these marriages are invalid, and what are the consequences?
Ebelechukwu: A church wedding does not automatically mean a legal marriage unless conducted in a licensed church or accompanied by a statutory or customary marriage. The ceremony is ‘merely a blessing’ of a customary marriage if the church is unlicensed. Such marriages hold no legal weight without proper registration, affecting issues like inheritance and divorce proceedings. Many couples do not realise this until they face legal challenges, such as property disputes or custody battles and then struggle to prove their marriage’s validity in court. Getting legal advice is key to avoiding problems with divorce, inheritance, and child custody. People misunderstand things like church weddings and inheritance laws. Knowing your marriage type and how it affects your rights is essential.
PT: What happens if a couple discovers their church marriage isn’t legally valid? Can it be rectified?
Ebelechukwu: Yes, they can formalise the marriage by registering it at a marriage registry. Many couples unknowingly wed in unlicensed churches. To rectify this, they should approach the registry for proper documentation. If they fail to do so, their marriage remains customary, which follows native laws rather than statutory protections. Some couples also opt for a reaffirmation ceremony to ensure legal recognition. This process helps prevent future legal complications related to inheritance and divorce.
PT: Does an unregistered church marriage affect inheritance and child custody rights?
Ebelechukwu: Yes, it does. If a couple is only married under customary law, inheritance follows customary law, not statutory inheritance laws. For instance, if a man married under statutory law dies intestate, his wife has more substantial legal claims under the administration of estates law. However, if their marriage was customary, his extended family may have greater control over the estate based on native customs. This distinction is crucial in court cases, where statutory marriages provide more explicit protections for spouses and children.
PT: What are some common misconceptions about divorce in Nigeria?
Ebelechukwu: Many believe divorce is as simple as submitting a letter, but it requires evidence and is a legal process. Some think all church weddings are legally binding, but many aren’t. Adultery doesn’t automatically lead to divorce if the spouse forgives it. Others assume the wife always loses custody, but courts decide based on the child’s best interests. It’s also a misconception that both spouses must agree to a divorce—one spouse can file without consent if they prove the marriage has broken down irretrievably. Courts can proceed if the petitioner’s claims are supported by evidence.
PT: Can you clarify what constitutes “intolerable behaviour” as grounds for divorce?
Ebelechukwu: The court decides if a spouse’s behaviour makes life unbearable, considering serious issues like mental instability or substance abuse. Minor problems don’t count. Evidence, such as medical or police reports, assesses the behaviour. If a spouse forgives adultery and stays, it can’t be used as grounds for divorce later. Additionally, if adultery is the cause, the third party must be named unless they are deceased or missing for years. Forgiving adultery is seen as reconciliation, which weakens the divorce case.
PT: What happens when a spouse disappears for years?
Ebelechukwu: If a spouse has been absent for seven years without communication, the court may presume them dead and grant a divorce. Other grounds include refusal to comply with a court order for conjugal rights or continuous separation for one to three years. A missing spouse’s financial and legal obligations are scrutinised, as their absence may impact debts, property ownership, and child custody.
PT: Are there different kinds of divorce in Nigeria? Do they affect the timeline and outcome?
Ebelechukwu: There are no different types of divorce in Nigeria, but the process depends on the kind of marriage. Statutory marriages need a court process for divorce, while customary and Islamic marriages follow different rules, often involving family or religious leaders. Judicial separation is not a divorce; the couple stops living together, but the marriage stays. Dating others during this time would still be adultery. Judicial separation is for couples unsure about divorce or for religious reasons, while divorce ultimately ends the marriage, allowing both to remarry.
PT: Is it legally possible for a spouse living abroad to file for divorce in Nigeria, and how are joint assets handled?
Ebelechukwu: A spouse living abroad can file for divorce in Nigeria if they are domiciled here, and virtual hearings can help with the process. However, the court may decline jurisdiction if both parties have strong foreign ties. As for joint assets, the court considers financial and non-financial contributions, such as emotional support or homemaking. The decision depends on factors like the length of the marriage, financial situations, and whether children are involved.
PT: Child custody is a typical divorce case overseas. How do Nigerian courts decide child custody? Do mothers always get custody, as popularly believed?
Ebelechukwu: Courts prioritise the child’s best interests. Factors include age, sex, and overall well-being. Generally, young children stay with their mothers unless the father proves otherwise. In some cases, courts interview children privately to understand their preferences. Financial stability, mental well-being, and parenting history are also considered. In high-conflict cases, courts may assign joint custody or allow frequent visitation rights to ensure both parents remain involved in the child’s life.
PT: Do divorcing women who sacrificed their careers get financial protection in Nigeria? Is maintenance automatic?
Ebelechukwu: Nigerian law provides maintenance under Section 70 of the Matrimonial Causes Act, offering financial support as a lump sum or periodic payments, depending on the spouse’s financial capacity. However, maintenance is not automatically granted; the claimant must prove the other party’s ability to pay and demonstrate their economic dependence and contributions to the family. Courts consider factors such as financial capacity, conduct, and the ability of the spouse seeking maintenance to attain financial stability. To prevent misuse, courts ensure fairness in awarding maintenance, and when children are involved, child support is typically mandated for their well-being.
PT: From your experience handling cases, what mistakes do people make before or during a divorce?
Ebelechukwu: The biggest mistake is rushing to court without exploring mediation. Divorce should be the last option, not the first. Another mistake is weaponising child custody—using children as tools against former spouses. Divorce ends a marriage, not parenthood. Parents should prioritise children’s well-being over personal grievances. Other common mistakes include hiding assets, making emotional decisions instead of rational ones, and failing to seek legal advice.
PT: Are there common misconceptions about divorce laws?
Ebelechukwu: One common misconception is that maintenance is only for women and children under 18 but can also apply to financially vulnerable spouses. Divorce isn’t always a fight; mediation and settlements can help. Some believe only men pay maintenance, but women can also be ordered to support ex-husbands. Lastly, while many think prenuptial agreements don’t count in Nigeria, courts consider them, especially in asset division.
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PT: Is there an increase in divorce cases among young couples aged 25 to 40, with marriages lasting only 2 to 10 years?
Ebelechukwu: From my experience, while I don’t have official statistics, I’ve noticed that divorce rates seem higher among people in their 60s and 70s. I’ve seen elderly couples, including a woman in her 70s using crutches, file for divorce. For younger couples, infidelity and domestic violence are common reasons. Domestic violence cases are more likely to succeed in court, as adultery is more complicated to prove and often relies on circumstantial evidence, like hotel visits or pregnancy. Many cases are based on domestic violence due to the difficulty of proving infidelity.
PT: If you could change one thing about Nigerian divorce laws, what would it be and why?
Ebelechukwu: One crucial change is to remove the rule that a marriage must be at least two years old before a divorce can be filed. That rule makes the process more challenging for couples in unhappy marriages. The law on property settlement is also too vague and should clearly define what counts as a contribution to ensure fair settlements. I also suggest introducing a no-fault divorce system where people don’t need to prove specific reasons for divorce. Lastly, marriage laws should be unified to include all types, such as customary and Islamic.
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