Can the Refusal of a Spouse to Live/Relocate With Their Partner Be Categorized as an Intolerable Behaviour to Warrant a Divorce?
There is a renewed interest amongst young Nigerians to emigrate abroad with their families. This new emigration trend has gone so viral that Nigerian youths have introduced a new slang for it—Japa1 . However, one of the fallouts of this new wave of emigration is the separation of families. In some cases, the husband is interested in emigrating, whilst the wife will not be interested, and vice-versa.
Under the Nigerian Matrimonial Causes Act2, one of the facts which a Petitioner can rely upon to establish that their marriage has broken down irretrievably is that, since the marriage, the other spouse has behaved in such a way that the Petitioner cannot be expected to live with the spouse. Additionally, section 16 of the Act provides a list of actions the Court would consider intolerable behaviour. Although the refusal of a spouse to live with their partner or relocate to any other location with their partner is not one of the items listed in section 16 of the Act, there are judicial authorities3 supporting the position that an action would be considered intolerable if the Petitioner can establish to the Court’s satisfaction that the Respondent’s action is one in which a reasonable person cannot be expected to live with in the marriage.
In the recent decision of Adetule v. Adetule4 , the Supreme Court of Nigeria had the opportunity to make a pronouncement on whether a wife’s refusal to join her husband in his new location can be considered intolerable behaviour, which the husband cannot be expected to continue to live with in the marriage.
SUMMARY OF THE FACTS OF ADETULE V. ADETULE
The parties, in this case, got married on 22 September 1990 in Lagos State, and they lived as a couple in Port Harcourt, Rivers State, from inception until sometime in 2004 when the husband relocated to Lagos State after resigning from an oil service company to start his business venture. When the husband relocated to Lagos State, he asked his wife to stay behind in Port Harcourt for their first child to complete his secondary school education, after which she would join him in Lagos State.
The husband’s private venture in Lagos State did not kick off to a good start, and he decided to relocate to Ekiti State to start another business venture. However, according to the husband, his wife refused to join him in Ekiti State even after their first child had completed his secondary school education.
On 7 October 2008, the husband filed a petition for the dissolution of his marriage with his wife at the High Court of Ekiti State on the ground that the marriage had broken down irretrievably based on the facts of intolerable behaviour and living apart. The trial Judge agreed with the husband’s case and granted an order dissolving the parties’ marriage on the ground that the wife had behaved in a manner in which the husband could not be reasonably expected to live with her.
The wife appealed against the trial court’s decision to the Court of Appeal, Ekiti Division, and the Court of Appeal dismissed her appeal for totally lacking in merit. The wife was further dissatisfied with the Court of Appeal’s decision, and she appealed to the Supreme Court.
Again, the Supreme Court dismissed the appeal and agreed with the trial court and Court of Appeal’s decision that by failing to join her husband in Lagos and Ekiti State, she had acted in an intolerable manner, which her husband could not be reasonably expected to live with in the marriage. Indeed, the Supreme Court, per Garba, JSC5, held as follows:
“In the appellant’s case, the trial court had considered and found the deliberate and persistent refusal of the appellant to join and live with the respondent in both Lagos and Ado-Ekiti, after he move (sic) from Port-Harcourt, from the evidence of the respondent, the appellant herself and her own brother PW1 who testified for her, to be an intolerable behaviour which the respondent, as the husband and head of the family, cannot reasonably be expected to live with in the marriage. The appellant has not been able to fault that finding in this appeal as all that counsel for the appellant has strenuously argued at large, is that the appellant had flatly denied refusal to move with the respondent. The findings of that fact by the trial and lower courts are amply supported by the accepted, credible and sufficient evidence adduced by the respondent of the disobedience and disrespectful attitude of the appellant to his clear and reasonable instructions which were intended to and directed at keeping the family together and maintaining the marriage between them. The law does not allow the court to casually disturb concurrent findings of the two lower courts when they are apparently borne out and supported by credible and sufficient evidence at the trial court. Such findings may and can only be properly interfered with if they are shown to be manifestly erroneous in law or violate some principle of law or procedure which leads to a miscarriage of justice in the case.”
TAKE AWAY FROM THE SUPREME COURT’S DECISION IN ADETULE V. ADETULE
From the Supreme Court’s decision, we can deduce the following:
- A spouse can rely on the intolerable behaviour of their partner that is not listed in section 16 of the Matrimonial Causes Act to establish that their marriage has broken down irretrievably.
- A spouse can rely on their partner’s refusal to live with them at a particular location within Nigeria as intolerable behaviour, establishing that their marriage has broken down irretrievably.
- A spouse can rely on their partner’s refusal to relocate with them abroad as intolerable behaviour establishing that their marriage has broken down irretrievably.
- A spouse who has gotten the consent of their partner to live apart from the partner cannot be accused of behaving intolerably because they refused to live with their partner.
- Any spouse who plans to rely on the intolerable behaviour of their partner must establish this fact to the Court’s satisfaction by showing that the conduct is grave and weighty such that a reasonable person cannot be expected to condone it.