In Nigeria, there are several reasons and grounds for dissolution of marriage, of which adultery is a part of, however, the Law states that the sole grounds for divorce in Nigeria is that the “marriage has broken down irretrievably”, but adultery is one of the reasons that would entitle a petitioner to a decree absolute to dissolve a marriage. The Matrimonial Causes Act 1970 and the Matrimonial Causes Rules 1983 is the primary law that governs the dissolution of marriage in Nigeria.
Adultery is simply the act of having a consensual sexual relationship between two people in which a party to such a relationship is married at the time of the act. This simply means that there was a subsisting marriage of one of the parties at the time the adultery was committed.
The key element for proving adultery as a ground for divorce of marriage is the element of intolerability, which is that the petitioner finds the act genuinely intolerable and cannot be reasonably expected to live with the respondent after the adultery was committed. If the petitioner upon discovery of the adulterous affair seems to tolerate the act by his/her conduct, the Court will assume or conclude that the adultery was condoned except the petitioner proves that he/she finds it intolerable to live with the Respondent as a result of the adultery.
Section 15 of the Matrimonial Causes Act states the particulars of fact that must be proved by the Petitioner upon which the grounds for dissolution of marriage can arise. It provides in 15 (b) that a marriage has broken down irretrievably if the petitioner can prove to the satisfaction of the Court” that since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent”.
This particular reason for divorce poses a huge problem as it is often difficult for the petitioner to prove. Proving adultery can be effectively done by involving a third party which is the second party that was involved in the sexual relationship with the Respondent and also adultery is an act performed in private. Adultery can only be established through circumstantial evidence and in this case, the standard of proving adultery as a ground for divorce will be based on the preponderance of evidence and its probable truth and not on the amount of evidence or beyond reasonable doubt.
The court in adjudicating on the matter will consider the familiarity and opportunity, proof of sexually transmitted disease, confessions, etc in the respective divorce petition.
The petitioner in proving his/her case can go further to providing the name and address of the third party and listing them as a co-respondent in the divorce petition. The third-party who becomes a co-respondent in the petition will also be served court processes and may also be found liable.
In the decided case of MATHEW M. AJAYI Vs. OLAITAN A. AJAYI HD/27/67 decided on the 18th day of December 1970. The petition was filed by the husband against the wife on the ground of adultery. The Petitioner pleaded that the respondent committed adultery with the co-respondent and she had a baby for him. The respondent did not enter an appearance or file an answer; however, the co-respondent denied committing adultery with her. In support of the ground for the divorce, evidence was adduced that the respondent was found pregnant before she left her matrimonial home and she admitted living with the co-respondent whom she admitted was responsible for her pregnancy.
The Court held relying on Section 15 (b) of the Matrimonial Causes Decree 1970, that a marriage could be dissolved on the ground of its being broken down irretrievable if since the marriage the respondent had committed adultery and the petitioner finds it intolerable to live with the respondent.
On the evidence before the court, the court was satisfied that the marriage between the petitioner and the respondent had broken down irretrievably and it ought to be dissolved and that failure of the respondent to enter an appearance or file an answer was ample corroboration of the fact that she had confessed adultery as testified by the petitioner.
Decree nisi was ordered for the dissolution of marriage celebrated between Mathew Modupe Ajayi and Olaintain Agbeke Ajayi.
Matrimonial cases in Nigeria are very sensitive to determine by the Court and it is not easy for a marriage union to be declared broken. For a statutory marriage to be dissolved on the grounds of adultery, the Petitioner must successfully prove with good reasons that adultery had taken place and he/she finds it intolerable to live with the respondent and that is why the marriage should be declared broke down.
The court can infer adultery from admission and confession of the respondent, contraction of a sexually transmitted disease, cohabitation with a third party, pregnancy, or frequent visits to hotels, but the most important element is that the Petitioner finds the act intolerable.