Dissolution of marriage proceedings in Nigeria are governed by the Matrimonial Causes Act, which sets strict conditions for the granting of a divorce. Although these proceedings can be emotionally difficult and procedurally demanding, parties often seek to resolve issues amicably to avoid prolonged litigation.
However, unlike typical civil suits, divorce cases are not resolved by Terms of Settlement in the conventional sense. While parties may agree on certain ancillary matters, the core issue of dissolution must be determined strictly by law and evidence, and not by mutual agreement.
In this blog post, we explore the role and limits of settlement in divorce proceedings under Nigerian law, and why care must be taken to comply with the no collusion rule in petitions for dissolution of marriage.
Can Terms of Settlement Be Adopted in Divorce Cases?
In civil cases, Terms of Settlement are commonly used to resolve disputes. However, in a petition for dissolution of marriage, courts are prohibited from granting a decree based on collusion or connivance between the parties.
Under Section 15(1) & (2) and Section 82(1) of the Matrimonial Causes Act, the court must be satisfied that:
• The marriage has broken down irretrievably, based on one or more of the statutory grounds (such as adultery, desertion, unreasonable behavior, etc.); and
• There has been no collusion or connivance between the parties to bring about the petition or facilitate the granting of a decree.
Therefore, any document suggesting mutual agreement to dissolve the marriage—such as a formal Terms of Settlement—may amount to evidence of collusion, which the law expressly prohibits.
What Can Parties Agree On?
While the dissolution itself must be proven and not agreed upon, parties can still amicably resolve ancillary issues arising from the breakdown of the marriage. These include:
• Custody and maintenance of children
• Access and visitation rights
• Spousal maintenance
• Division of jointly acquired property
Such matters can be documented and submitted to the court in the form of terms of settlement, but they must not form the basis of the dissolution itself.
Importance of Proving a Statutory Marriage
It is also important to emphasize that statutory marriages—marriages conducted under the Marriage Act—can only be dissolved by a court of competent jurisdiction. As such, proof of a subsisting statutory marriage is fundamental, and this is typically established by the production of a marriage certificate.
Without this proof, the court lacks the jurisdiction to entertain the petition or grant any reliefs, whether by judgment or purported settlement.
The Right Approach: Avoiding Collusion
To comply with the law and avoid the appearance of collusion:
• Each party should present their individual account of the marital breakdown
• Settlement on ancillary matters should be handled separately and after the court is satisfied as to the grounds for dissolution
• Lawyers must ensure that any proposed agreement does not suggest mutual agreement to divorce, but rather resolves post-dissolution issues
Final Thoughts
While amicable resolution of disputes is encouraged in law, marriage dissolution is a special category of legal action governed by public interest and strict statutory safeguards. Terms of Settlement cannot be used to bypass these safeguards or substitute for the court’s duty to assess whether the marriage has indeed broken down irretrievably.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. For guidance tailored to your specific situation, please consult a qualified legal practitioner.
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