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POV: Titi got married to Tolu on December 29, 2022, in the ABC International Ministries. The wedding was the talk of the town. Dignitaries were in attendance. Pomp, and pageantry; top notch. On the night of the wedding, this conversation ensued:
Titi: I saw you staring at my best friend lustfully during the dance. You cheat, Liar, you want to sleep with her, abi? We barely just got married.
Tolu: Did you just call me a cheat? (Gives Titi a very thunderous slap and, in quick succession, rains heavy blows on Titi till she passes out and is rushed to the hospital).
2 weeks after.
Titi: (still nursing injuries) Tolu, Please, can you help me get some stuff on your way back from work?
Tolu: So you’re this mannerless? I should become your maid abi? (hits Titi with the briefcase in his hand, and Titi passes out again, this time bleeding with a severe cut on her forehead)
This writer holds the opinion that the advice that would be rendered by a larger populace would be for Titi to quit the marriage less than 2 months into the wedding. Is this advice permissible under the Law? In this article, this burning topic shall be considered in detail.
BACKGROUND
In recent times, the world at large seems to be experiencing an abundance of failed marriages which most times lead to the dissolution and nullification of these marriages. The reasons for these marriages’ failure include infidelity, financial mishaps, and background differences, among others.
One of the questions people in this category seem to ask is whether they have to stay in such marriages where the same is established to have broken down beyond repair. It is apposite to state that there is no law that mandates cohabitation or marriage where it is clearly established that there are conditions that make it impossible for cohabitation to subsist. We shall consider this shortly.
GROUNDS FOR DISSOLUTION OF MARRIAGES
This article does not seek to discuss the dissolution of marriages in general, as this issue has been discussed in several other articles. This article seeks to examine the position and procedure of the law as regards marriages that have failed at a very early stage (under 2 years).
Generally, before a dissolution can be sought, the parties must have been married for at least 2 years[i]. The only known ground to law to validate a petition for the dissolution of a marriage(divorce) is that the said marriage must have broken down irretrievably[ii]. There are instances where the parties do not have to wait until the expiration of 2 years before a decree of dissolution is sought in the circumstance. This is most times known as the 2-year rule.
Click here to read CUSTODY OF CHILDREN IN DIVORCE PROCEEDINGS: LEGAL CONSIDERATIONS
GROUNDS FOR DISSOLUTION OF MARRIAGES UNDER 2 YEARS
As it had been earlier established, a petition for dissolution of marriage can only be activated where the marriage subsists for at least a period of 2 years as of right.
By virtue of Section 30(1) of the Matrimonial Causes Act,
“Subject to this section, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the court[iii].”
From the above-cited provision, it is firmly established that no divorce proceedings can be instituted as of right where the marriage is not up to 2 years as at the time of the filing of the petition except the leave of the court had been sought before the petition for dissolution can be considered.
Section 30(3) provides as follows:
“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 that the case is one involving exceptional depravity on the part of the other party to the marriage”
This provision states that the grounds upon which a party seeking the leave of the Court to file a petition for the dissolution of the marriage within 2 years must hinge the petition. To do this, the party/petitioner is highly expected to place relevant facts before the court in establishing the need for the grant of the said leave. The party seeking the leave would be expected to inform the court of the facts that spell imminent exceptional hardship on them and from the other party if the said application is refused. The scenario of Titi and Tolu would be one of the various factors or reasons why the court may be inclined to grant the application, as a loss of life is imminent in the circumstance, and the court will ordinarily not expect the parties to continue in the marriage mandatorily.
CRITERIA TO BE CONSIDERED IN GRANTING THE APPLICATION FOR LEAVE
Asides from the consideration of the circumstances that would occasion exceptional hardship or amount to exceptional depravity, the court will also pay attention to some other factors, such as the interest of the children of the marriage, and the probability of reconciliation amongst the parties.[iv]
Where leave is gotten by misrepresentation or concealment of material facts, the application, as well as the petition, would be dismissed on the grounds that it was obtained by irregular means.[v]
CONCLUSION
Conclusively, the sanctity of marriage should be upheld, hence, the 2-year rule. This is, however, not absolute as there are exceptional circumstances that make it unreasonable for the party alleging extenuating circumstances amounting to depravity or hardship to wait out the 2-year period. You can seek an order for dissolution where you fall into this category by seeking legal counsel, which our firm is well-positioned to handle.
[i] Section 30(1) of the Matrimonial Causes Act 1973
[ii] Section 15 of the Matrimonial Causes Act 1973
[iii] Section 30(1) of the Matrimonial Causes Act 1973
[iv] Section 30(4) of the Matrimonial Causes Act 1973
[v] Section 30(5) of the Matrimonial Causes Act
Written by Faniyi Oluwafemi for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com