Desertion is a common ground for seeking the dissolution of marriage under Nigerian matrimonial law. However, proving desertion involves meeting specific legal requirements, as highlighted in the Court of Appeal’s decision in Igbuwe v. Igbuwe (2023) LPELR-60748(CA). This case examines the critical elements of desertion under Section 15(2)(d) of the Matrimonial Causes Act (MCA).
The Issue
The appellant filed a petition seeking a decree of dissolution on the ground that the respondent had deserted the marriage for about two years, thereby causing the marriage to break down irretrievably. The trial court analyzed the evidence but found it insufficient to prove desertion, a decision upheld by the Court of Appeal.
Key Legal Principles on Desertion
Justice Abimbola Osarugue Obaseki-Adejumo, JCA, reiterated the elements required to establish desertion, relying on the decision in Nwakwo v. Nwakwo (2014) LPELR-24396(CA). The court explained that for desertion to be established, the following elements must be present:
1. Elements on the Part of the Deserting Spouse
• Factum (Physical Separation): There must be clear evidence of the deserting spouse physically separating from the marital home.
• Animus Deserendi (Intention to End Cohabitation): The deserting spouse must have the intention to permanently end cohabitation.
2. Elements on the Part of the Deserted Spouse
• Absence of Consent: The deserted spouse must not have consented to the separation.
• Absence of Conduct Leading to Desertion: The deserted spouse’s behavior must not have reasonably caused the deserting spouse to decide to end cohabitation.
These elements must be proven cumulatively to succeed in a petition based on desertion.
Court’s Ruling
The court found that the evidence presented by the appellant did not satisfactorily establish the required elements, particularly the animus deserendi of the respondent and the absence of conduct reasonably causing the desertion. The court emphasized the need for concrete evidence to support such claims under Section 15(2)(d) of the MCA.
Implications for Legal Practice
This case serves as a valuable guide for legal practitioners handling matrimonial causes. Key takeaways include:
1. Comprehensive Evidence: Both physical separation and intention to desert must be demonstrated with credible evidence.
2. Focus on Conduct: The petitioner must establish that their behavior did not contribute to the desertion.
3. Statutory Requirements: Adherence to Section 15(2)(d) of the Matrimonial Causes Act is essential in proving desertion.
Conclusion
The decision in Igbuwe v. Igbuwe underscores the stringent evidentiary requirements for proving desertion as a ground for dissolution of marriage. Petitioners must not only establish the physical separation but also prove the intention to permanently end cohabitation, while also demonstrating their own lack of fault in the separation.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.
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