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Bars to a Petition for Dissolution of Marriage


The old absolute and discretionary bars to divorce still apply under the Matrimonial Causes Act 1970 to all the facts evidencing irretrievable breakdown of the marriage stipulated under sections 15 and 16 except the fact of section 16 (1)(g).

Ordinarily, a petitioner who has proved to the satisfaction of the court that the marriage has broken down irretrievably is entitled to a decree of divorce. But such a decree may be refused if an absolute or a discretionary bar applies to the case. The absolute bars are condonation, connivance and collusion on proof of which the court is bound to dismiss the petition.

Conversely, the discretionary bars are petitioner’s uncondoned or revived adultery, petitioner’s desertion before happening of fact alleged and conduct conducing, on proof of which the court retains the discretion whether or not to dissolve the marriage. These will now be discussed seriatim.


This is the conditional forgiveness of a marital misconduct of a spouse and the reinstatement of

him or her to the position of a spouse. It operates to bar a party from obtaining a decree of divorce on the fact of adultery or unreasonable behaviour. Thus in Okala v.Okala,[1] the wife-respondent in a cross-petition proved to the satisfaction of the court that the husband–petitioner had committed adultery with their house-help.

The court found that, although she knew the house-help was at the petitioner’s beck and call and had knowledge they were both committing adultery, she took no active or passive step to remonstrate. Instead, she tacitly acquiesced in the commission of adultery.

The court held that she could not in the circumstances show that she found it intolerable to live with the petitioner and as, “the respondent knew that the woman cited was living with the petitioner’s mother bearing children for the petitioner and yet she was indifferent…..the

respondent cannot be entitled to a decree.The court in essence said that the respondent’s condonation of the adulterous acts barred her from obtaining the divorce decree.[1]

The courts may on occasion draw the inference of condonation from the fact of sexual intercourse between the parties following knowledge by one spouse of the other’s adultery. Such sexual relations will be conclusive evidence of condonation in the case of a husband.

On the other hand, a wife who submits to sexual intercourse with her adulterous husband at his request cannot be deemed to have condoned his adultery.[2] A plea of condonation will fail if the condonation was obtained by pretence or fraud.


This is based on the legal maxim that no act is actionable in the suit of any person who has expressly or impliedly assented to it either in advance or contemporaneously- volenti non fit injuria. In the Okala case, the wife-respondent was absolutely barred from alleging the intolerability of her husband’s adulterous acts not only because she was found to have condoned the acts, but also because she seemed to have connived to bring the acts about.

As the court put it, “Her evidence in the case of the housemaid leaves the impression that the maid was a lady–in- waiting ready at the beckon of the finger surely, if anything this was a case for tolerable adultery by connivance.

A spouse will also be barred from obtaining a decree of dissolution of marriage if he or she instructed another to bring about the conduct alleged in the petition. In such a situation, he or she will be deemed to have connived in the conduct constituting the fact alleged in the petition.


This exists if there is an agreement between the spouses, with the intent to deceive the court into

granting a decree of divorce which it would not otherwise grant. In Olajumoke v. Olajumoke,[1] the fact of three years living apart was alleged. Exhibits in court included a document titled “Document of Mutual Understanding” signed by the parties.

It was therein stated that each party had a consortium of new partners, that each party had children born out of wedlock, and that neither would contest the divorce proceedings. Segun J. concluded that the parties’ agreement was collusion within the meaning of section 27 of the Matrimonial Causes Act 1970 but the decree of divorce was granted because though ‘they were anxious to do away with each other and to reduce their relationship in writing, yet it was not done ‘with any intent to cause any perversion of justice.’

A spouse who did not bother to contest or defend the petition could not be deemed to be in collusion with the petitioning party. There will however be collusion where a spouse, on the promise of substantial financial settlement, is induced not to contest the petition.[2]

Under Order V, Rule 7, of the Matrimonial Causes Rules 1983, a petitioner for divorce or judicial separation must state in the petition whether or not he or she condoned or connived at, the fact relied upon and whether he or she was guilty of collusion with intent to cause perversion of justice.

Petitioner’s Uncondoned or Revived Adultery

Where a spouse has committed adultery that has not been condoned by the other spouse or if so has been revived, the court has discretion whether or not, on the petition of such a spouse, to grant a decree of dissolution of the petitioner’s marriage. As under the old law, a petitioner who has committed adultery must state so in a “discretion statement “ appended to the petition, with a prayer to the court to dissolve the marriage notwithstanding the adultery.[3]

In Ambe v. Ambe[4], the evidence in court showed that when wife-petitioner first knew about her husband’s adultery with his ex-wife, she confronted him. And although the husband-respondent

had retorted that she should ‘leave if she did not accept it’, she continued to live with him in their matrimonial home.

On her second discovery of his adulterous act with another woman, the husband-respondent told her she was lucky she did not find the female–adulterer in their matrimonial home on her return from her visit to her native country-Malaysia. The husband who had started divorce proceedings withdrew them.

Thereafter, the wife moved out of the matrimonial home, committed adultery subsequently, and petitioned for divorce on the fact of the husband’s adultery and her intolerability of it. The husband cross-petitioned on the fact of the wife-petitioner’s adultery and his intolerability of it. In delivering the judgment of the court, Uwais J. allowed both the petition and the cross-petition to succeed and the decree of divorce was granted.

Petitioner’s Desertion before the happening of fact Alleged

As stated above, where one or more facts stipulated in Section 15(2) are proved against the respondent, but such fact occurred after the petitioner had deserted the respondent, then the court has a discretion to grant or refuse a decree of divorce.

In the Ambe[1] case, the court granted a decree of divorce to the husband-respondent even though the wife-petitioner committed adultery after moving out of the matrimonial home. As the court put it: “..both the petition of the petitioner and the cross-petition of the respondent….on the ground of adultery succeed.”

It is significant that no specific period is prescribed for the desertion. Hence, desertion for a period less than the one year required in Section 15(2)(d) of the Act may constitute a discretionary bar.

Conduct Conducing

A court may refuse to grant a decree of divorce if the habits or conduct of the petitioner have conduced or contributed to the existence of the ground for divorce relied upon by the petitioner.[1]

It is not all the conduct of the petitioner that may conduce or contribute to the ground for divorce. The conduct in issue must involve some element of misconduct for instance, desertion or adultery. There must be some wrongful act or omission that supports the divorce.[2]

Proof of the petitioner’s misconduct is not enough. In addition, there must be a distinct casual connection between the habit or conduct complained of and the matrimonial offence on which the petition is based. The conduct must be its immediate cause, it is not sufficient to show that they were connected by a series of events.

[1] Section 28(c) MCA 1970

[2] Haevecker v. Haevecker [1936] 57 CLR 639,655

[1] Supra

[1] Suit No. HD/83/83 of 14/2/84 (unreported) Lagos High Court

[2] Ogunleye v.Ogunleye (Supra)

[3] Opajobi v.Opajobi [1980] F.N.L.R, 217

[4] Supra

[1] Ibid

[2] Ayoola v.Ayoola (1979) 2.L.R.N. 257

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