A general review on Divorce
A general review on Divorce
Divorce is not really easy as some as thinks it is, especially in case of marriages celebrated under the act.
When considering divorce as an option in a marriage celebrated under the act , there is a pertinent principle that must be considered, that pertinent principle is contained in the provisions of section 30[1] of the MCA which states that proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by the leave of the court .This makes it practically impossible for couples to institute a proceeding for divorce unless their marriage have lasted up to more than two years except with the leave of the court, and the only condition under which the leave of the court can be granted in divorce proceeding are encapsulated in sub- section 3 of section 30 which provides thus ‘’ the court shall not grant leave under this section to institute proceedings except on the ground that to refuse to grant the leave would impose exceptional hardship on the applicant or the case is one involving exceptional depravity on the other party to the marriage’’.
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The term exceptional hardship and exceptional depravity are not defined in the legislation, however, the law places the primary responsibility for determining what is exceptional and the exercise of the discretion on the judge of first instance who is to assess the evidence adduced in the applicant’s affidavit. In order to enable the judge to exercise his functions appropriately in this respect; there is need for full evidence as to the nature and extend of the applicant’s suffering or the respondent’s depravity. The leave of the court under section 30 [3] may be granted on both arms of the sub-section or on the basis of one of the two factors. Examples of actions that has been pronounced exceptional hardship and exceptional depravity includes [starvation of sex or food, burning of applicant’s certificate, desertion, inordinate sexual demand especially when the other partner is unfit health wise, physical violence, cruelty, constant neglect, e.t.c also in order to reach a decision of what should constitute an exceptional hardship or depravity, the judge may take into account not only the present hardship arising from the conduct of a spouse but also hardship emanating from having to wait until the specified period had elapsed.
The reason for this rule is to deter people from rushing into ill-advised marriage and, also to prevent people from rushing out of marriage as soon as they discover that their marriage was not what they expected.
However, there is an exception to this rule, for there are some circumstance under which a proceeding for divorce can be instituted without leave of the court. Those circumstance are as follows;
- Willful and persistent refusal to consummate the marriage
- Adultery and the petitioner finds it intolerable to live with the respondent
- The respondent has committed rape, sodomy or bestiality
- The institution of proceeding for decree of dissolution of marriage by way of cross proceedings.
Note that the principle applies also in a proceeding for judicial separation.