CAN a woman sue her husband for adultery? This was the question on several people’s minds when, a few months ago, a popular Nigerian actor was embroiled in a scandal and accused of adultery.
A lawyer, John Essiet of O. E. B. Offiong SAN & Co. – Legal Practitioners and Notaries Public – told The ICIR that there are certain situations whereby a wife can sue her husband and his mistress for adultery.
He stated, “Adultery is a criminal offence under the Penal Code of Northern Nigeria. Sections 387 and 388 of the Penal Code stipulate imprisonment for two years and/or with a fine for adultery. It is not prosecuted under the Criminal Code of the Southern States of Nigeria. However, it provides for redress if a spouse can prove that adultery occurred.
Adultery will only be grounds for divorce if the spouse finds it intolerable. Where the spouse condones the act, the court will not terminate the marriage, as held in the celebrated case of Alabi v. Alabi.”
Essiet emphasized that under the Matrimonial Causes Act, an individual in a marriage can seek damages for adultery if the act is not forgiven and occurs within three years before the claim is filed.
“Section 31 of the Matrimonial Causes Act further provides that a party to a marriage can claim damages for adultery if such an act is not condoned and was not perpetrated for up to three years before such a claim is made,” he stated.
He further pointed out that the damages awarded for adultery are compensatory in nature. The court takes various factors into account when determining these damages, such as the loss experienced by the petitioner, harm to their honour and emotions, disruption to family life, and the value of the adulterous spouse to the claimant.
On whether a wife can sue her husband’s mistress whom he committed adultery with, the legal expert told The ICIR that “the Court of Appeal affirmed that joinder of adulterers is a must requirement for dissolution of marriage on the grounds of adultery as stated in the case of In the case of EIGBE v. EIGBE (2012) LPELR-19690(CA)”.
He clarified that if a person is accused of committing adultery with someone in a marriage, the law requires that they must be included in the petition to allow them the chance to defend themselves against the allegations, as it is essential to ensure a fair hearing for both parties. If the accused individual is not joined in the petition, the mere allegation of adultery cannot serve as a basis for obtaining a decree to dissolve the marriage.
“On a person alleged to have committed adultery with a partner in marriage. The Law mandatorily requires he/she must be joined in the petition to afford him/her the opportunity of defence to such allegation (this is also to give a fair hearing to the other party); where such a person is not joined, adultery per se, cannot constitute a ground for a decree for dissolution of such marriage”, Essiet stated.
Basis for divorce in the Nigerian legal system
Speaking with The ICIR, Essiet highlighted that in the Nigerian legal system, there is essentially one sole ground for initiating a petition for the dissolution of marriage, which is that “the marriage has irretrievably broken down.” This indicates that the cause of the breakdown is so severe that saving the marriage is no longer possible.
Additionally, he noted that this basis for the dissolution of marriage has been proven by the law to include; “the respondent willingly and persistently refusing to consummate the marriage, the marriage which the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent and the marriage which the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”, among others.
According to the Matrimonial Causes Act, the sole ground for the dissolution of marriage is that the marriage has broken down irretrievably. However, the petitioner must prove one or more of the facts below to establish the ground.
One of such grounds in section 15,2b is that “since the marriage, the Respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent”.