Introduction
A marriage may break down only months after the wedding. When that happens, one of the first questions a spouse may ask is whether it is legally possible to commence divorce proceedings before the marriage has lasted for two years.
The answer is yes, in certain circumstances.
The Matrimonial Causes Act imposes a two-year restriction on the institution of proceedings for dissolution of marriage, but the restriction is subject to important exceptions. In some cases, leave of court is required. In other cases expressly identified by the Act, the two-year restriction does not apply at all.
The relevant provision is section 30 of the Matrimonial Causes Act.
What Does Section 30 of the Matrimonial Causes Act Provide?
Section 30(1) provides:
“Subject to this section, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the court.”
The effect is that a spouse who wishes to commence divorce proceedings within two years of the marriage will ordinarily require the leave of the court.
However, it is important not to read subsection (1) in isolation.
Section 30 itself contains exceptions to the two-year restriction.
The Two-Year Rule Is Not Absolute
Section 30(2) provides that the restriction does not apply to proceedings based on:
- section 15(2)(a) of the Matrimonial Causes Act;
- section 15(2)(b) of the Act;
- section 16(1)(a) of the Act; or
- proceedings for dissolution of marriage by way of cross-proceedings.
This means that the law does not require every person whose marriage is less than two years old to first obtain leave before commencing proceedings.
The nature of the facts relied upon is therefore important.
Divorce Proceedings Based on Wilful and Persistent Refusal to Consummate
Section 15(2)(a) deals with a situation where the respondent has wilfully and persistently refused to consummate the marriage.
Because section 30(2)expressly excludes proceedings based on section 15(2)(a), the two-year restriction does not apply to such proceedings.
Accordingly, where the petition is properly based on this statutory ground, the petitioner does not have to obtain leave under section 30 merely because the marriage is less than two years old.
Divorce Proceedings Based on Adultery
Section 15(2)(b)deals with adultery.
The provision applies where, since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
Again, section 30(2)expressly excludes proceedings based on section 15(2)(b) from the two-year restriction.
Therefore, a petitioner whose case properly falls within section 15(2)(b) may institute the proceedings notwithstanding that the marriage has not lasted for two years.
This is an important qualification to the commonly repeated statement that “you cannot file for divorce until after two years of marriage.”
Rape, Sodomy or Bestiality
Section 16(1)(a) is another express exception.
It deals with circumstances where, since the marriage, the respondent has committed rape, sodomy or bestiality.
Section 30(2) specifically provides that the two-year restriction does not apply to proceedings based on this provision.
Therefore, proceedings based on section 16(1)(a) may be instituted without first obtaining leave under section 30.
What If the Case Does Not Fall Within These Exceptions?
Where the proposed proceedings do not fall within the exceptions in section 30(2), a spouse seeking to institute proceedings within two years of the marriage must obtain the leave of the court.
This is where section 30(3)becomes important.
The court cannot simply grant leave because the parties are unhappy, separated, or have concluded that the marriage has failed.
Section 30(3) provides that leave may only be granted on the ground that refusal of leave would impose exceptional hardship on the applicant or that the case involves exceptional depravity on the part of the other spouse.
The statutory threshold is therefore deliberately high.
What Is Exceptional Hardship?
The Matrimonial Causes Act does not provide an exhaustive definition of “exceptional hardship”.
The courts have therefore considered the particular facts and circumstances presented in applications for leave.
The emphasis is on the word “exceptional”. The hardship must be something beyond the ordinary difficulties that may accompany a troubled marriage.
It includes allegations involving serious sexual demands when the applicant was in poor health, physical violence, neglect and quarrelling, infection with a venereal disease, and adultery with several women. The courts generally consider such circumstances sufficient to justify leave.
The court looks at the totality and seriousness of the circumstances rather than merely asking whether the marriage is unhappy.
What Is Exceptional Depravity?
Exceptional depravity concerns exceptionally serious conduct by the other spouse.
Again, not every form of marital misconduct will necessarily satisfy the statutory requirement.
The circumstances must be sufficiently grave to justify allowing divorce proceedings to be instituted before the expiration of the two-year period.
The allegations against the respondent may include physical violence, serious neglect, adultery with several women and conduct which exposes the applicant to serious harm. The circumstances may be treated as capable of amounting to exceptional depravity as well as exceptional hardship.
The Court Must Consider the Children and Possibility of Reconciliation
Obtaining leave is not determined solely by considering the hardship or depravity alleged.
Section 30(4)expressly requires the court, when determining an application for leave, to have regard to:
- the interests of any children of the marriage; and
- whether there is any reasonable probability of reconciliation between the parties before the expiration of the two-year period.
The possibility of reconciliation is therefore expressly made relevant by the legislation.
An applicant should consequently not approach the application as though the only question before the court is whether the marriage has broken down.
The court is required to consider the statutory factors prescribed by section 30(4).
How Is an Application for Leave Made?
Where leave is required, an application may be made ex parte under Order IV Rule 1 of the Matrimonial Causes Rules.
The supporting affidavit is important.
Order IV Rule 2 requires the affidavit to include, among other matters:
- particulars of the exceptional hardship alleged to arise if leave is refused, or particulars of the exceptional depravity alleged against the other spouse;
- the ground upon which the applicant intends to petition for dissolution if leave is granted;
- information concerning any previous application for leave;
- information concerning any child of the marriage; and
- information concerning attempts at reconciliation.
The procedure therefore requires the applicant to place specific facts before the court. A general statement that the marriage is unhappy or has broken down is not enough.
What Happens If Leave Was Obtained by Misrepresentation?
Section 30 also protects the integrity of the leave process.
Under section 30(5), if the court discovers at the hearing of the divorce proceedings that leave was obtained by misrepresentation or concealment of material facts, the court may:
- adjourn the hearing for such period as it considers appropriate; or
- dismiss the petition on the ground that the leave was obtained in that manner.
This makes accuracy and full disclosure particularly important when applying for leave.
A petitioner should therefore not attempt to exaggerate, manufacture or conceal material facts merely to satisfy the requirements for leave.
What About a Cross-Petition?
Section 30(2) expressly excludes proceedings for dissolution of marriage by way of cross-proceedings from the operation of the two-year restriction.
This is another reason why the general statement that “a person cannot file for divorce within two years” is incomplete.
The circumstances in which the proceedings are instituted and the legal basis upon which they are brought matter.
What Happens If the Petition Is Dismissed Because Leave Was Improperly Obtained?
Section 30(7) provides an important safeguard.
The dismissal of a petition or cross-petition under subsections (5) or (6)does not prejudice subsequent proceedings based on the same or substantially the same facts constituting the ground upon which the dismissed proceedings were brought.
In other words, dismissal in those circumstances does not necessarily prevent a subsequent proceeding based on the relevant facts.
Can Facts That Occurred During the First Two Years Be Used Later?
Yes.
Section 30(8)makes this clear.
The fact that a spouse waits until after the expiration of the two-year period does not mean that events which occurred during the first two years automatically become irrelevant.
Proceedings instituted after the two-year period may be based on matters which occurred during that period.
The Court’s Discretion Is Fact-Specific
An application under section 30 is therefore heavily dependent on evidence.
The applicant should provide sufficient facts to enable the court to assess:
- the nature and seriousness of the alleged hardship;
- the conduct said to amount to exceptional depravity;
- the effect of the circumstances on the applicant;
- the interests of any children;
- whether reconciliation remains reasonably possible; and
- any other material circumstances relevant to the statutory discretion.
The court is not required to grant leave merely because the parties have separated or because one spouse strongly desires a divorce.
Does Obtaining Leave Mean That the Marriage Will Automatically Be Dissolved?
No.
This distinction is important.
Leave to institute proceedings is not the same thing as a decree of dissolution of marriage.
Where leave is required, the applicant must first obtain permission to commence the divorce proceedings. The substantive petition must then proceed in accordance with the Matrimonial Causes Act.
The petitioner must still establish the statutory basis for dissolution and satisfy the court that the marriage has broken down irretrievably.
Therefore, obtaining leave merely removes the procedural obstacle created by the two-year rule. It does not itself dissolve the marriage.
A Simple Example
Consider a couple who have been married for eight months.
If the proposed petition is based on ordinary allegations of marital incompatibility or other facts that do not fall within the exceptions in section 30(2),the petitioner will ordinarily need to apply for leave before instituting the proceedings.
The applicant must demonstrate exceptional hardship or exceptional depravity.
However, if the proposed proceedings fall within one of the matters expressly excluded by section 30(2), such as wilful and persistent refusal to consummate the marriage, adultery accompanied by the statutory requirement under section 15(2)(b),or conduct falling within section 16(1)(a), the two-year restriction does not apply in the same way.
This is why the facts and the legal ground upon which the petition is framed are extremely important.
Key Takeaways
If your statutory marriage is less than two years old:
First: The two-year rule does not mean that divorce is completely impossible.
Second: Some proceedings may be instituted without leave because section 30(2)expressly excludes them from the restriction.
Third: Where leave is required, the court may grant it only where refusal would impose exceptional hardship on the applicant or where the case involves exceptional depravity on the part of the other spouse.
Fourth: The court must consider the interests of the children of the marriage and the reasonable possibility of reconciliation.
Fifth: Obtaining leave does not automatically result in the dissolution of the marriage. The substantive divorce proceedings must still be established.
Sixth: Misrepresentation or concealment of material facts when obtaining leave can result in the petition being adjourned or dismissed.
Conclusion
The popular statement that “you cannot file for divorce in Nigeria until you have been married for two years” is therefore incomplete.
Under section 30 of the Matrimonial Causes Act,proceedings for dissolution of marriage generally cannot be instituted within two years of the marriage without leave of court. However, the same section expressly creates exceptions, including proceedings based on specified matters under sections 15(2)(a), 15(2)(b) and 16(1)(a), as well as cross-proceedings.
Where leave is required, the applicant must satisfy the court that refusal of leave would impose exceptional hardship or that the case involves exceptional depravity.
The question is therefore not simply “Have you been married for two years?”
The more important questions are: What is the legal basis of the proposed petition? Does section 30(2) apply? If leave is required, can exceptional hardship or exceptional depravity be established by evidence?
These distinctions can make a significant difference to the way a matrimonial case is commenced.
Disclaimer
This article is provided for general information and educational purposes only. It does not constitute legal advice and should not be treated as a substitute for advice from a qualified legal practitioner. Matrimonial proceedings are highly fact-specific, and the appropriate procedure may depend on the circumstances of the marriage, the grounds relied upon, the applicable court rules and the evidence available. Anyone considering proceedings for dissolution of marriage should obtain professional legal advice before commencing an action.
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