Legal Consequences of Adultery in Nigeria|Advocate

There are three major legal consequences of Adultery in Nigeria. The first is imprisonment for a term of two years and/or with a fine imposed by the Court but this only applies in Northern states in Nigeria, as provided under Sections 387 and 388 of the Penal Code Act. The second consequence is that a person whose spouse has cheated on them can file a petition for dissolution of the marriage (aka divorce) and the Court can grant an order for dissolution. See section 15(2)(b) of the Matrimonial Causes Act. Finally, the Petitioner can sue the person with whom his/her partner cheated, for damages. See section 31 of the Matrimonial Causes Act. For the purpose of this newsletter, we would focus on divorce and damages as legal consequences of adultery. Divorce as a Legal Consequence of Adultery To obtain an order of the Court for the dissolution of marriage (divorce), the partner seeking the divorce (petitioner) must prove that the marriage has broken down irretrievably. In simpler terms, this means that the marriage has failed and cannot be made to work again. One of the ways to prove that a marriage has broken down irretrievably is if either party to the marriage engages in adultery. The Matrimonial Causes Act under section 15(2)(b) provides that the court hearing a petition for divorce shall hold the marriage to have broken down irretrievably if the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. The above section highlights a condition that is relevant to consider, which is that the petitioner must not have condoned the act of adultery. Let's put this in context- Imagine that Cynthia was aware of her husband's affair with her neighbour and she ignored it for months until one day, she suddenly petitions for a divorce on the grounds that her husband has been cheating. If Johnny can prove that Cynthia was aware of his affair and had tolerated/condoned his conduct, her petition would likely fail. The Court upheld this position in the popular case of Alabi v Alabi. Adultery is often proven by circumstantial evidence. Circumstantial evidence does not directly prove a fact in question, instead it leads to a logical conclusion that the fact exists, requiring additional reasonable inferences to support the claim. Some of the circumstances from which adultery could be inferred include: Venereal disease: If Johnny wounds up with a Sexually Transmitted Disease (STD) that Cynthia doesn't have, it suggests that he has had intercourse with someone other than Cynthia. Frequent Brothel visits: If Cynthia often finds Johnny at a brothel or other similar places with a third party, it could be presumed he is committing adultery. The birth of a child: Gestation periods are considered. For instance, if Cynthia has a child within a period shorter than the time that she last had intercourse with Johnny, it could be evidence of adultery. Confession/Admission: When the adulterous party confesses, it could serve as proof. However, the Court may scrutinize a confession to ensure it is not fabricated, especially if the confessing party desires a divorce. The Court would usualy require corroboration of the confession. Damages as a Legal Consequence of Adultery An aggrieved partner can join the co-adulterer (person with whom his/her partner cheated) as a party to the divorce petition and demand an award of damages against him/her as the case may be. In awarding damages for adultery, the court will consider the following: The loss suffered by the petitioner Injury to petitioner's honor and feelings. Hurt to family life. Value of the adulterous spouse to the claimant However, the court will not award damages if:

The adultery has been forgiven.
The divorce is not granted based on the adultery.
The adultery occurred more than three years before the divorce petition was filed.

This principle was applied in the case of Kadiri vs. Abo, where the sum of ₦2,000,000 (Two Million Naira) which was awarded to the wife as damages for adultery against the husband's mistress was set aside by the Court of Appeal because she filed the petition more than three years after the adultery took place. However, even if the adultery was committed over three years before the petition, an action for damages can be brought if the adultery was continuous. For example, in Alabi vs. Alabi, the initial act of adultery was discovered when the husband's mistress gave birth to a son. By the time the petition was filed, more than three years had passed. Nevertheless, the Court upheld the wife's claim for damages because the husband's adultery was ongoing. In the spirit of Valentine's Day, share this with a loved one to educate them about the role the law plays in preserving the sanctity of marriage and love. By Ikanke for the Lawpadi Team