The Nigerian MCA still contains both absolute and discretional bars. The absolute bars are condonation and connivance1 as well as collusion2.
Discretionary bars are also three namely petitioner‘s adultery, petitioner‘s desertion and conduct – conducing to the commission of the matrimonial offence or misconduct3
(a) Condonation occurs where a spouse with full knowledge of the matrimonial wrong committed by the other spouse, reinstates the offending spouse to his or her former marriage position, with the intention of forgiving or remitting the wrong, on the condition that the spouse whose wrong is so condoned does not thereafter commit any matrimonial offences4.
Condonation was further explained in the case of Olutayo v Olutayo5 as follows:
Condonation of Matrimonial Offences means the conditional forgiveness of all such offences as are known to or believed by the offended spouse, so as to restore as between the spouses the status quo ante. As the forgiveness is conditional and not a forgiveness in the true sense of the
1Section 26 of the M C A CAP M 7 LFN, 2004 2 Section 27 of the MCA Ibid
3Section 28 of the MCA Ibid
4I Sagay, Nigerian Family Law, Cases, Statutes Commentaries ( Lagos Malthouse Press, 1999) p.
393
5 (Unreported) Suit No 1/96/69 of 20/2/70, per Oyemade Ag. CJ (Western State)
word, the real import of condonation is a conditional waiver of the right of the spouse to take matrimonial proceedings. Whether or not there has been condonation is a question of fact. Unless it appears to the contrary, the condition subject to which the offending spouse is forgiven is that no further matrimonial offence shall occur.
(b) Connivance – This occurs where a petitioner has consented, encouraged, willfully contributed to the commission of the matrimonial misconduct on which a petition for divorce is based, he will be refused a decree of divorce on the ground that he connived at the misconduct6. By Section 26 of the MCA, a decree of dissolution of marriage shall not be made if the petitioner has connived at the conduct constituting the facts on which the petition is based. The only exception is where the respondent is of unsound mind under Section 16 (1) (g) of the same MCA of Nigeria.
Again Connivance may be express or passive. It is express where there is express authority or consent given by the petitioner to the alleged misconduct. An example occurred in Obiagwu v Obiagwu7 where the parties were married in 1942. From 1944, the relationship of the parties started to grow cold because of the childlessness of the petitioner. In 1954, the wife/petitioner consented to the respondent cohabiting with one Patricia Nkwudo in the matrimonial home, for the purpose that she would bear children for the respondent. As a result of the respondent‘s adultery with Patricia, four children were born. In 1966, the wife petitioned for divorce on the ground that the petitioner had
6 E I Nwogugu, Family Law in Nigeria (Revised edn, Ibadan: Heinemann Educational Books, 1990) p.24 7 (Unreported) Suit No 0/5D/1966 delivered on 20th June 1947 at Onitsha High Court
committed adultery with Patricia. The court refused to grant a decree of divorce on the ground that the petitioner connived at the respondent‘s adultery.
It is passive connivance where a spouse stands by and permits the act to take place. He or she is said to have acquiesced to the act.
However, it must have been done with the intention that the misconduct will be committed. Also connivance can be spent if there is withdrawal of consent. There must be a causal connection between the initial connivance and the latter act complained of. In such a case, connivance would still be on8. Absence of such a nexus automatically removes the inference of such connivance.
(c) Collusion – This implies an agreement or acting in concert, to procure the initiation or prosecution of a suit for divorce with intent to cause a pervasion of justice9. By Section 27 of the Matrimonial Causes Act, a decree of dissolution of marriage shall not be made if the petitioner, in bringing or prosecuting the proceedings, has been guilty of collusion with intent to cause a pervasion of justice. Collusion has been defined as ―an agreement or bargain between the spouses or their agents or between the petitioner and the co-respondent as to procuring the initiation or conduct of the divorce proceedings10.
From the forgoing, the two ingredients of collusion are agreement and improper motive or purpose to pervert the course of justice. For instance, it has been held in Bell v Bell11 that if one party has the intention and the other does not, there is no agreement. Also,
8 Godfrey v Godfrey (1964) 3 All ER 154 9 Nwogugu, op cit, p. 200
10 Kasunmu and Salacuse, op cit, p. 147 11 (1963) 4 FLR 273 at 276-7
where a party is paid to initiate divorce proceedings, or a party agrees to commit a matrimonial misconduct, collusion arises12.
Discretionary Bars
The Matrimonial Causes Act13 provides that the court, may in its discretion, refuse to make a decree of dissolution of marriage if since the marriage –
(a) The petitioner has committed adultery that has not been condoned by the respondent or having been so condoned has been revived.
(b) The petitioner has willfully deserted the respondent before the happening of the matters relied upon by the petitioner or where those matters involved other matters occurring during or extending over, a period, before the expiration of that period; or
(c) The habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the matters relied upon by the petitioner.
Petitioner’s Adultery – This is a situation where the petitioner has committed an uncondoned adultery or where having been condoned is revived, it becomes a discretionary bar to a petition. It is also required that he files a discretion Statement irrespective of the ground upon which the petition is based. The Discretion Statement is a written confessional statement made to the court by the petitioner as to his adultery asking specifically for the court‘s exercise of discretion in his favour14.
Petitioner’s Desertion – This is a situation where the petitioner has wilfully deserted before the occurrence of the acts relied upon in the petition, the court then has a
12 Crew v Crew 162 ER 1102 13Section 28
14Order XI Rule 29 Matrimonial Causes Rules
discretion to refuse a decree of divorce in his favour15. It follows that the desertion must be wilful. However Section 28 (b) of the Act does not state a specific period for the desertion.
Conduct Conducing – By Section 28 (c) of the MCA, if the habits of the petitioner have or conduct of the petitioner has, conduced or contributed to the existence of the matters relied upon by the petitioner, the court may on its discretion refused to make a decree of dissolution of marriage.
The case of Negbenebor v Negbenebor16 is pertinent here. In that case, the husband without just cause forced his wife out of the matrimonial home and abandoned her for three years without any maintenance. The court held that it was the husband‘s wilful neglect and misconduct that led (conduced) to the wife‘s adultery. The petition was accordingly dismissed.
Where then lies the Contradiction and Absurdities? Nigerian Matrimonial Causes Act is reputed to have introduced the Breakdown Theory of Divorce which means divorce devoid of fault element.
However, the truth has been said as earlier quoted from Nwogugu‘s book17 that Nigerian divorce runs the two regimes of fault and non-fault principles. But the absurdities and contradiction are seen where the absolute or discretionary bars are
15 Section 28 (b) MCA Ibid p. 94
16 (1971)1 All NLR 210 17 Nwogugu, op cit, p. 204
extended to all the seven species of the breakdown of the marriage listed in the MCA18. For example, it is quite difficult to understand how the petitioner could be said to have condoned or connived with the respondent where the fact/specie of breakdown being relied upon is that the respondent has been continuously absent from the petitioner for such time, and circumstance as to provide reasonable ground for presuming that he or she, is dead.
According to Ifemeje in her book19 ‗as far as living apart provision is concerned, under Section 15 (2) (e) and (f), it is uncertain what the petitioner must condone, connive at or collude with, to absolutely bar his or her petition…‘
The absurdity and contradiction occasioned by the bars were highlighted in the case of Bengho v Bengho20 where Ovie-whiskey, J. held inter-alia, that the discretionary bars in Section 28 were inappropriate to petitions filed under the Separation grounds.
It was clear in this case that the petitioner‘s repulsive conduct was chiefly responsible for the separation of the petitioner, he however, prayed the court to dissolve the marriage, based on the ground that the parties had lived apart for a continuous period of three years, immediately preceding the presentation of the petition. The court apparently, realizing that absurdity of the law, stated as follows:
In my view, if I refuse to make the decree, asked for, by the petitioner, the purpose of Section 15 (2) (e) and (f) of the MCD, which appear to me, mandatory, will be rendered nugatory and of no effect, as a refusal to
18 Section 15 (2) (a) to (h) 19 Ifemeje, op cit, p. 56
20(Unreported) Suit No. W/53/70 of 31/7/7 delivered by Ovie-Whiskey, J.
make the decree, will amount to my refusing to dissolve a marriage that has irretrievably broken down.
Again, Ipaye21 equally stated that ‗any attempt to extend the absolute and discretionary bars to the other grounds of divorce would be irrational‘.
From the foregoing, it is my humble submission that since Nigerian divorce Law (MCA) is still running both fault and breakdown principles, the bars should apply to the sections relating to faults, to avoid cases of contradiction and absurdities.
6.2 Examination of Incapacity to consummate and Wilful Refusal to Consummate