What Is No Fault Divorce?

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It’s getting fashionable to talk about no fault divorces and telling couples to choose a no-faults divorce over a contested divorce. Emotions run deep when a marriage breaks up and it is hard to counsel no-fault.

What is a No-Fault divorce? It is meant to be one where the couple agree to divorce without ascribing blame on each other. Is this possible or is this a fallacy?

Divorce is a commonplace event; yet it leads to the greatest emotional trauma that anyone could face. It is a death of a marriage, even though both of you are living. It is a situation where the relationship is put to death while the parties are still alive. It is easier to handle physical death than it is to deal with divorce.

Despite being commonplace it is shrouded with so much mystery; legal, physical and emotional. It evokes a feeling of fear and many have been known to vilify divorce practitioners even when their relationships have caught fire.

It is therefore difficult to understand how a divorce can be ‘no fault’ when there is so much going on emotionally, physically as well as legally. There is no such thing as ‘no fault divorce’ in our Nigerian laws. Spouses who say ‘let her have the divorce’ say it to hide from the stress of the process, forgetting that they still have to deal with the emotional and physical side of the process. It is sometimes wise to agree to mediation, preferably before the divorce. What’s the benefit of mediation in a divorce process

  1. The couple get a chance, usually through their counsels, to state what they want once the matter goes to court, and therefore hasten the process of the divorce.
  2. They are not subject to the court’s decision regarding issues about the children, joint property or any other issues.
  3. The ‘at fault’ party knows what accusations he faces and has a chance to apologise and seek forgiveness of his soon-to-be-ex spouse.
  4. Usually because it is a mediated disengagement, the children are broken into the process more gently, than if it was a court fought victory.
  5. The parties get a chance to start the healing process even before the divorce is concluded.

In the Nigerian legal system, there is only one ground for divorce; that the marriage has broken down irretrievably. There are then various facts that are deployed to prove that irretrievable breakdown; Adultery, desertion, unreasonable behaviour, living apart etc. Many people are wrongly advised that once they have lived apart for three years the divorce is granted automatically. It is a wrong assertion because in those three years the hurting spouse may raise issues of adultery or other unreasonable behaviour, which the court is minded to look into. While it is true that no court will force an unwilling spouse to stay with another, the issue of ‘fault’ may sway certain orders of the court, which may not be in the best interest of the ‘faulty’ party.

Divorce is never the first option

The current trend  is for the courts to seek an end to litigation, and so the place of mediation is growing and strongly too; principally because the best interests of the children are of paramount consideration.

Sisi Lawyer

December 2016

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Sisi Lawyer seeks to present legal aspects of relationships, whether business or family, in an easy to understand format.

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