Nigeria Divorce & Family Law

The divorce laws in Nigeria are primarily arranged on a ‘no-fault’ basis under the Matrimonial Causes Act. However, laws around what happens to your children after divorce and the split of any property differ from other countries. Here we discuss the grounds for divorce, child custody and contact, and financial settlements after divorce in Nigeria.

Divorce laws and grounds for divorce in Nigeria

The primary requirement to get a divorce in Nigeria is that you must have been married for at least 2 years. Unless there are exceptional circumstances – for example, a refusal to agree the divorce would impose hardship on one party – then you must have been married at least 2 years before you can divorce.

In Nigeria there is only one ground for divorce: namely that your marriage has irretrievably broken down. You can prove this in several ways including:

• Adultery
• Desertion for a period of at least 1 year
• Wilful refusal to consummate the marriage
• Poor behaviour, including rape, sodomy, drunkenness, criminal convictions or the refusal to provide financial support
• Separation for at least 2 years, and you both agree to the divorce OR separation of at least 3 years
• Your spouse has been missing 7 years and is presumed dead.

Children

Child custody forms an integral part of a divorce in Nigeria and must be considered from the very start of the process.

Under the Matrimonial Causes Rules, if you are petitioning for divorce you must include your intended arrangements for your child, including custody, education and financial support. A court cannot grant you a divorce until these arrangements have been agreed.

The primary factor in awarding custody under the Matrimonial Causes Act and Child’s Rights Act is the welfare and interests of your child. Courts will take some or all of the following factors into account when determining custody arrangements:

• The age and gender of the child (fathers often gain custody of male children while mothers gain custody of female children, depending if this is in your child’s best interests)
• The emotional attachment your child has to each parent
• Your child’s wishes and feelings
• The respective capacity of you to provide care, including your incomes
• Whether one of you lives with a third party
• Each parent’s conduct during proceedings.

The court will normally make one of three awards.

1. Divided Custody

Under divided custody, your child will leave with each parent for part of the year and, during this time, this parent has complete control over your child. The other parent has contact rights.

2. Split Custody

The court awards custody to one parent and care and control to the other. The parent with custody controls the major decisions regarding your child, while the other controls their day-to-day upbringing.

Sometimes, the court will award custody in both parents (with the right to make major decisions) and grant care and control to one of them.

3. Joint Custody

Under joint custody, both parents share ‘legal’ and ‘physical’ custody. Both parents are therefore involved in the major decisions about your child’s life, as well as having the right to physical custody. The court will wish to ensure that both parents are prepared to cooperate with one another before they make such an award.

Joint custody does not mean a 50/50 split of time and will depend on a range of factors including your child’s age and your work commitments.

Child abduction in Nigeria

Nigeria is not a party to the Hague Convention on Child Abduction. This means that there is no reciprocal agreement in place to have your child safely and quickly returned to Nigeria if they are taken out of the country by the other parent without your consent.

Similarly, if your child is taken from their normal country of residence to Nigeria without your permission, there is no framework in place to ensure their return. You are likely to need to speak to a local solicitor for advice.

Financial settlement

The laws in Nigeria uses ‘contribution’ as a basis for division of assets. As each of you owns property in your own right, there is not really a concept of ‘matrimonial property’. Additionally, Nigerian courts are reluctant to delve too deeply into the workings and finances of companies, and so they won’t generally consider assets held in corporate structures.

This can make it difficult for the economically weaker party to gain a fair settlement.

Courts can award maintenance if you are left in an economically unfair position after the divorce. For example, this may be awarded if you have stayed at home to look after your children and you need an income after the divorce.

The court will decide what (if any) maintenance is payable. This will be based on your lifestyles, your respective earning capacity, your age, the number of children you have and your conduct during the marriage. Any maintenance will end if you remarry.

The court can also order that a lump sum is paid from one spouse to the other. You must make it clear on what grounds you seek this lump sum and prove that your contribution to your combined wealth/assets warrants this payment.