REVIEW OF THE EVIDENTIAL BURDEN OF PROOF OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE IN MATRIMONIAL PROCEEDINGS IN NIGERIA

Abstract

In Nigeria, statutory marriage represents a union of a man and a woman who voluntarily consent to be husband and wife. Where issues arise, wherein any of the spouses, finds it intolerable to live with his or her partner, the party approaches the court for a decree of dissolution of such marriage. It is during such matrimonial proceedings that the burden of proof that the marriage has broken down irretrievably being the sole ground for dissolving such marriage arises. Irretrievable breakdown under the Nigerian MCA as the cornerstone for dissolution of marriage has the problem of evidential burden of proof oscillation between petitioners and respondents due to the inherent contest that requires parties to adduce varying degrees of evidence to support their positions in matrimonial proceedings. Through doctrinal methodology, this study examines the —fault-based‖ irretrievable breakdown system in Nigeria and the gradual movement to the contemporary —no-fault‖ or hybrid systems in the UK, Australia, Canada and South Africa as well as the fact-sensitive approach which courts adopt when assessing whether a marriage has broken down beyond repairs. This study found that there is the existence of difficulties in producing credible evidence to meet the statutory threshold of irretrievable breakdown even when a party is trapped in a desperately unhappy marriage with clear emotional reality of marriage collapse. The study also evaluates key policy considerations and recommends legal reforms for achieving fairness, reduction of adversarial conflicts and ensuring procedural justice in determining irretrievable breakdown of marriage in matrimonial proceedings.