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Thursday, 19 September 2019

FAMILY LAW: LEGAL GROUND TO DIVORCE YOUR SPOUSE

A marriage can only come to an end by divorce decree issued by Court and not otherwise. However, courts are not there to break your marriage but to protect it.  So to seek divorcee before the court of law might not be an easy task, nevertheless court cannot force you to live with the person whom you don’t wish to live with. Therefore you need strong ground(s) to persuade the court to decide on your favor.


                               
In the bible there is a story were Jesus when at the region of Judea, beyond the Jordan River while taught the gathered crowds, some Pharisees went and test him by asking “Is it lawful for a man to divorce his wife? He answered them what did Moses command you?” They said “Moses permitted a man to write a certificate of dismissal and to divorce her” but Jesus said to them “He wrote this commandment for you because of your hard hearts. But from the beginning of creation God made male and female for this reason, a man will leave his father and mother and the two will become one flesh. Therefore God has joined them together let no one separates them.” You can read this story at Mark 10.

So here we will take what did Moses command and move on.


See Also: Premarital/Prenuptial Agreement

What is Divorce?

Blacks Law Dictionary 8th Edition defines divorce as ‘legal dissolution of a marriage by a court.’

Legal Ground for Divorce

A marriage can only come to an end by divorce decree issued by Court and not otherwise. However, courts are not there to break your marriage but to protect it.  So to seek divorcee before the court of law might not be an easy task, nevertheless, the court cannot force you to live with the person whom you don’t wish to live with. Therefore you need strong ground(s) to persuade the court to decide on your favor.

The only ground/test which court applies to decide whether to grant a divorce or not is that ‘YOUR MARRIAGE HAS BEEN BROKEN DOWN IRREPARABLE.’ That simply means that you can't proceed with that marriage. So when you petition for divorce you must convince the court in respect of that ground/test. Thus you must produce evidence that proves that your marriage has been broken down irreparably. The normal wear and tear of your marriage cannot amount to divorce.

see also Petition for divorce ultimate overview and sample

Evidence that Marriage Has Broken Down Irreparable

In this aspect the court will take into consideration all relevant evidence regarding the conduct and circumstances of your marriage thus the court may accept any one or more of the following matters as evidence that a marriage has broken down beyond repair.

1.Adultery

Adultery simply means voluntary sexual intercourse between a man, single or married, and a married woman not his wife. This serves as evidence that your marriage has broken down especially when you have facts that show that your wife or husband has associated him/herself in adultery and you find it intolerable to live with him/her.  
The possible ways of proving adultery before the court of law is through adducing picture or videos of the adultery scenes, the birth of the child as a result of the adultery, confession statement, living with another partner and sometimes circumstantial evidence may be useful.

2. Cruelty

This is serious! What amount to cruelty is not certain; this depends on circumstances of your case but any act or omission which causes danger to life or health to you or your children is considered to be cruelty. Also, threats of future danger amount to cruelty. Regarding divorce, the court accepts both mental and physical cruelty. However, in most cases, mental or physiological cruelty might be hard to identify.




3. Desertion


Desertion is a separation of one spouse from the other with the the intention on the desertion spouse to bring cohabitation permanently to an end without reasonable cause and without consent of the other spouse. It may occur when there is a voluntary cessation of matrimonial duties and obligations e.g. sexual intercourse, not taking care of your family without any reasonable cause and in most cases where a spouse voluntarily and without reasonable cause leaves the other spouse against his or her will. Generally, desertion takes two forms;-

Physical desertion this is where one spouse physically leaves the matrimonial home with the intention of not to return again.

Constructive desertion this is where one spouse conduct in a manner that causes another spouse to live a matrimonial home.

In desertion, you must prove that your spouse has an unreasonable left matrimonial home or has caused you to move, with the intention of not coming back again. The intention, lack of reasonable cause and physical separation are the keys to desertion.

 4. Separation

It can be voluntary separation among spouses or separation by decree of the court. Generally, separation brings a union at the end for a specific time. It enables a spouse to settle their differences. During separation, the spouse remains dully married. Sometimes during separation reconciliation fails and when spouse lives separately for a long time (at least three years) becomes a good that the marriage has broken down.

5. Imprisonment

This serves as evidence that your marriage has broken down beyond repair when your spouse has been imprisoned for life or for a term not less than five (5) years. In this ground, courts consider the nature of the offense from which the sentence was imposed.

6. Mental Illness

The condition of this evidence is that it requires doctors to certify that the spouse who suffers from mental illness has no hope of cure or recovery. Otherwise, it will not serve you.

7 Change of  religion

This may serve as evidence that marriage has broken down irreparable where both spouses followed the same faith at the time of the marriage and later one spouse changes his/her religion and where according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage.

read also>  what is Void and voidable marriage?

Final remarks

Generally, it is advisable that when it comes to marriage issues, divorce should be used as a last resort. In case of any trouble in your marriage first you should seek help through other means like, to discuss your issues in family or clan meeting, going to marriage reconciliation bodies, stick to your religion teaching about marriage, voluntary separation while finding a solution etc. in case, all means proved futile then you can go for a divorce.

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