Divorce: Court, sentiments cause delays in marital lawsuits, lawyers lament

Lawyers in Lagos have attributed the delays in deciding matrimonial disputes to the courts’ attitude and society’s sentiments toward divorce.

The lawyers said litigation in marital disputes, like other forms of civil or criminal cases, was often delayed.

They, however, noted that the peculiar delays in matrimonial proceedings were due to the courts’ attitude and society’s sentiments towards divorce.

In an interview, Bayo Akinlade, convener of the Duty Solicitors Network, said that one reason for the delays was the traditional belief that marriages were a lifetime commitment.

He said because of the belief that ‘marriage is the bedrock of any society’, judicial officers tended to adhere to the norm.

“The traditional belief is that marriage is the foundation of every society, so the theory of the judiciary is that, as much as possible, we keep the marriage institution sacred,” Mr Akinlade stated. “That is why even in the colonial era we made use of the Received English Law, which rules are similar to the Bible, which admonishes us to keep marriages “for better for worse.”

Mr Akinlade added, “So, you find that some judges are often not disposed to granting divorces, and so, might delay parties with all the procedures in the Marriage Act. In the long run, it becomes difficult to get a quick marriage dissolution.”

He noted that aside from the moral or religious perspective, there was also the general problem of case congestion in the court’s docket.

“In my opinion, once a petitioner is able to meet the requirements in section 15(1)(2) of the Matrimonial Causes Act, then that should take care of the issue,” he said.

Mr Akinlade also noted that the statute regulating matrimonial cases was an old act, which states that before a marriage is dissolved, the parties must have been separated for at least two years.

“So, you find that when a petitioner who wants divorce approaches a lawyer, he is first asked how many years they have been separated. So, if there has been a separation, the lawyer then advises the petitioner further on the grounds for dissolution; so, you see, it is a process,” he said.

Mr Akinlade also highlighted another reason for delays: the respondents often frustrate the cases even when the party has been served with processes to attend court.

“So, if it is a man divorcing his wife, the woman may make herself scarce and unavailable for service of processes and vice versa. Now, if a party is not served with the court process, they cannot legally come before the court, so this adds to the delays,” he said.

Also, the president of the Africa Women Lawyers Association (AWLA), Amanda Demechi-Asagba, highlighted some peculiarities that cause delays in divorce cases.

Divorce lawsuits suffered delays just like other court cases. However, the first hurdle was to assign the suit number, and then the court tried the matter, said Ms Demechi-Asagba.

For instance, Ms Demechi-Asagba said the Lagos court dockets were “overflowing” with cases. So, completing divorce matters took “donkey years,” unlike states like Ogun, Osun, and Nasarawa, where the duration was shorter.

Ms Demechi-Asagba also listed other factors that cause delays in divorce cases, including service of court papers and entering of appearances, family emotion and stigmatisation of parties in a dissolution tussle.

She explained, “Some of these delays are also caused by emotions that go with divorce, like family intervention and the customary taboos accompanying such cases. There is also the threat to disown especially the daughter, for daring to bring shame to the family, as well as the time it takes to gather the necessary documents to support one’s case.

“The court processes of compulsory conference, mandatory reconciliation or the mediation before the commencement of trial are also factors which cause delays.”

Ms Demechi-Asagba also noted that witnesses’ unwillingness to testify for or against the parties due to family ties was another factor contributing to the delays. She described the restraints on the part of witnesses as a “defence”, so they are not seen as instrumental to the divorce.

“In some cases, the delays helped the parties to heal and get back together, while in some, it escalates the tension, leading to violence and total breakdown,” she said.

Ms Demechi-Asagba, however, noted that there was no time frame for dissolution of marriage in court. She noted that undue delays in dispensing justice were generally not encouraged because “Justice delayed is justice denied.”

The coordinator of the African Women Lawyers Association (AWLA) in Ogun, Ebere Obiora, noted that delays in the judicial process were not peculiar to divorce cases.

According to her, parties in divorce proceedings are not expected to stay together, it could be unsafe for them to live under the same roof while in court.

While confirming that delays could arise in a divorce suit, she also said that counsel to either party was free to apply to the court for a speedy hearing.

“Most of the time in the life of a marriage whose dissolution was ongoing, parties do not normally live together. In any case, where parties are still living together and the matter becomes unduly delayed, counsel involved may apply for an accelerated hearing of the suit,” said Ms Obiora.

She added, “This is to avoid any of the spouses becoming a victim of circumstances. Meanwhile, I must point out that delays in matrimonial proceedings, just as in other cases, might occur due to the circumstances of the particular case. Therefore, delays in litigation are not an issue that bothers on cases of marriage dissolution only.”

Another lawyer, who is a member of the International Federation of Women Lawyers (FIDA), Vera Chiweuba, said that issues of delay in proceedings touched on all matters irrespective of its nature.

Ms Chiweuba said, “These delays cut across all matters, whether marriage cases, criminal or civil; it is, in fact, an issue calling for attention from apex judicial authorities. So, the question should be why the judiciary is so slow; this is a situation from which our courts must purge themselves.”

While noting that some delays may be due to a shortage of judges, Ms Chiweuba urged the judiciary to expedite action to ensure the timely disposal of cases.