Desertion is a ground for dissolution if a spouse has left the marriage and they have lived apart for at least one or two years
Some Lagos-based lawyers have argued that dissolving a marriage that has broken down irretrievably is not the exclusive preserve of the high court.
In separate interviews on Monday, the lawyers stated whether a high court has jurisdiction to dissolve a marriage depends on the type of marriage contracted.
Ogedi Ogu, country director of Advocacy for Justice and Accountability (AJA), said no law compels a spouse to remain in an abusive marriage.
“Desertion is a ground for dissolution if a spouse has left the marriage and they have lived apart for at least one or two years. However, even in a toxic marriage, only a high court can dissolve a statutory marriage,” said Mr Ogu.
Mr Ogu also noted that customary courts dissolve customary marriages.
Ebere Obiora, coordinator of the African Women Lawyers Association (AWLA), Ogun chapter, said the Matrimonial Causes Act (MCA) grants the high court jurisdiction over marital disputes.
Ms Obiora explained that judicial separation prohibits physical contact but does not terminate the marriage. She added that affected parties could still apply to the court for a full dissolution.
The principal partner of Ayoola Chambers, Julius Ayoola, said divorce procedures depend on the type of marriage involved. He argued that dissolving a broken marriage is not necessarily the exclusive jurisdiction of the high court.
A statutory marriage, he explained, must be dissolved in a high court, while a customary marriage is handled by a customary court.
“A customary marriage can be dissolved in a customary court if the parties choose,” he said. “In some cases, couples may avoid court altogether and dissolve the marriage by returning the bride price. In Igbo culture, a customary marriage is considered dissolved once the bride price is returned,” he added.
However, Mr Ayoola noted that a high court might still intervene in child custody and welfare matters.
“The high court has jurisdiction over the welfare of children,” he stated.
Samson Erugo argued that couples do not need a high court ruling before separating.
“The requirement that only a high court can dissolve a marriage does not reflect reality and often causes undue hardship,” he said. “In some places, couples can agree to separate through mediation or a dissolution agreement.
“Such an agreement can be filed in court and adopted without the stress of a full trial. I believe Nigeria should adopt this more flexible approach in clear cases of irretrievable breakdown,” he stated.
Mr Erugo added that the high court requirement stems from Christian beliefs about marriage sanctity.
“This rule is a colonial legacy and has been embraced by local cultures seeking to protect marriage. While these arguments remain valid, modern realities should allow for exceptions,” Mr Erugo explained.
NAN