Often during Divorce Proceedings, allegations of adultery are included as a ground for petitioning the court for a dissolution of marriage, and more often than not, the allegations are usually very grave. These allegations don’t only seek to convince the court that the marriage has broken down irretrievably but also that the Petitioner has not and cannot condone such action from Partner.
Proving your case before a Judge after having filed a petition for dissolution of marriage is crucial to the success of your case. Most especially as Nigerian law does not recognize a “no – fault” divorce and will only grant the petition for dissolution if the Petitioner can prove its case. Failure to do so will most likely result in the court dismissing the Petition and encourage parties to try settling their differences amicably.
Since our focus here is proving the allegation of adultery in a divorce petition, it is important to note right off the bat that mere allegations without adequate proof will not succeed, but first off, what is adultery in the first place? In Ibeabuchi v. Ibeabuchi (2016) LPELR – 41268 (CA), the Court of Appeal defined Adultery as consensual intercourse between two persons of opposite sexes at least, one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of marriage. In essence, Adultery is sexual intercourse between two persons of whom one or both are married but not married to each other.
Adultery is a serious allegation in marital disputes and can have significant legal consequences in Nigeria. Proving adultery in court requires a thorough understanding of the legal framework and the ability to present compelling evidence. Under Nigerian law, adultery is not only a ground for divorce but also a criminal offense under the Penal Code applicable in Northern Nigeria. To succeed in a petition based on adultery, the petitioner must prove that the marriage has broken down irretrievably due to the respondent’s adulterous behaviour[i].
The Matrimonial Causes Act governs divorce proceedings in Nigeria and according to Section 15(2)(b) of the Act, a marriage can be dissolved if the respondent has committed adultery and the petitioner finds it intolerable to live with them[ii]. However, while alleging adultery is one thing, being able to prove it is another and the burden of proof lies with the petitioner, who must establish the elements of adultery. In Ugbotor v. Ugbotor (2006) LPELR – 7612(CA), the court held that to establish adultery, there must be;
- Sexual Intercourse: There must be evidence of sexual intercourse between the respondent and a third party.
- Voluntary Act: The sexual intercourse must be voluntary.
- Marital Status: One of the parties involved must be married.
Proving adultery can be challenging, especially since direct evidence is often difficult to obtain. However, Nigerian courts accept both direct and circumstantial evidence. Here are some types of evidence that can be used:
- Confessions: An admission of adultery by the respondent can serve as direct evidence.
- Witness Testimony: Testimonies from witnesses who observed the adulterous behavior can be compelling.
- Circumstantial Evidence: This includes evidence of opportunity and disposition, such as hotel receipts, text messages, or photographs showing the respondent in compromising situations.
- Cohabitation: Evidence that the respondent is living with someone other than their spouse can strongly suggest adultery.
- Birth Records: An entry in the birth register showing that someone other than the spouse is the father of a child can be used as evidence.
- Medical Evidence: Blood tests or medical records indicating that the respondent contracted a sexually transmitted infection (STI) from someone other than their spouse can be used as proof.
Being able to prove adultery is quite a difficult task, especially if you have to show that there was sexual intercourse involved. Only an admission of the act or evidence depicting the actual act is 100% proof of adultery because to prove adultery, one must show that there was penetration of the male organ into the woman. The courts are aware of this fact, thus in proving the existence of adultery; the courts will rely on indirect or circumstantial evidence. The following are ways of proving adultery, though some are circumstantial, others are more definite:-
- Evidence of disposition and opportunity; for instance, if a married woman had been taken out clubbing for over 7 hrs after dark, only for her date to bring her home, followed by both alighting from the car and kissing passionately. That’s strong evidence showing that they had opportunity.
- Cohabitation: where a married man/woman lives together under the same roof with another person, adultery is strongly presumed.
- Confessions: An admission of adultery is proof of same.
- Entry in Register of birth: An entry into the register of birth by a woman showing that someone other than her husband is the father of her child amounts to a confession of adultery against her.
- Blood tests: Blood tests can be used to ascertain the paternity of a child and as such can be used as evidence of adultery, if the child according to blood test is not the true child of the man.
- Birth of a child after gestation period: When a wife gives birth to a child, more than 280 days after her husband had sex with her, it constitutes proof of adultery against the wife.
- Visits to Brothels: When a ma visits a brothel frequently, its proof of adultery.
- Infections: Contracting a STI is proof of adultery except it was proven that the STI was gotten via innocent causes.
- Conviction for sexual related offences: When a married man is convicted for raping or committing any sexual offence against someone who is not his wife, it is strict proof of adultery.
It is important to note that adultery must be voluntary, thus a married woman who is raped cannot be guilty of adultery by virtue of that act.
If you have any questions about dissolution of marriage or filing a petition, please be sure to send us a mail at info@aocsolicitors.com.ng
[i] Adultery and Divorce in Nigeria: Legal Strategies for Proving Cases
By Ebelechukwu Aroh-Nwoka Esq / October 19, 2024
https://www.elawfirm.ng/adultery-and-divorce-in-nigeria/?form=MG0AV3&form=MG0AV3
[ii] Section 15 (2) (b) Matrimonial Causes Act