Tuesday, 27 August 2019

Adultery Under Nigerian Law


Few weeks ago, a client came to me seeking for my legal opinion on the issue of adultery under our laws. At first, just like most Nigerians, I noticed she was looking for a free legal service, so as it is the characteristics of most lawyers in such a circumstance, I was reluctant to say much but on a second thought, I found out that she has no source of income, so I went into a pro-bono service. This is part of what I shared with her:

Under our laws, divorce is usually the last alternative for a troubled marriage. The court normally exhausts all other avenue before resorting to separation and the only ground for the dissolution of a marriage in Nigeria is that the marriage has broken down irretrievably.

Under section 15 (2)(b) of the Matrimonial Causes Act, a marriage may be said to have broken down irretrievably if since the marriage, the respondent has committed adultery and petitioner finds it intolerable to live with the respondent. There are two things to gather from here: first, the respondent has committed adultery, secondly, the petitioner finds it intolerable to live with the respondent. Thus adultery “simpliciter” is not a ground for divorce.

Again, in order to be guilty of adultery a person must have submitted to or had intercourse voluntarily. Hence if a person is raped or misled in whatsoever situation, she or he does not thereby become guilty.

Ways to proof adultery;

Since this is something down in a closed door, it is very difficult to proof adultery, thus the courts rely on circumstantial evidence. The court will draw a thought from any of the following:

1. Cohabitation: when a male and female live under the same roof, adultery is presumed between them.

2. Blood test: a blood test can be used to establish the fact that the man is not the father of her child.

3. Confession and admission: any of the parties may accept by confession that he or she actually did commit adultery.

4. The birth of a child after 280 days: when the woman gives birth to a child, more than 280 days after her husband last had access to her.

5. Conviction for rape: a court judgment stating that a man has committed the offence of rape is sufficient.

6. Frequent visits to brothels

7. Infection by venereal diseases

The requirement of intolerability is subjective in nature. The wording of the law says “the petitioner finds it intolerable to live with the respondent”. It is the feeling of the petitioner that matters here not that of a reasonable man or some feminist tendencies so to say.

We live in a society and tradition where it is tolerable for a man to have as much concubines as his finances can carry. In fact before the event of colonial rule and the entry of missionaries into the territories of Africa, it was a mark of wealth and a show of elitism for men to relish themselves with pretty young damsels and until we change that mentality, the issue of tolerability will always stand as a clog.

Uwakwe Roland, Esq.

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