Petitioner and Respondent are married with one child. Petitioner and her child had lived apart from Respondent for more than three years prior to the date on which he petitioned for divorce was ﬁled. Petitioner sought a court declaration that would establish the marriage as “broken irretrievably” and grant her custody of the couple’s child. Respondent cross petitioned for child custody and dissolution of the marriage based on Petitioner’s adultery. Respondent argued that Petitioner ﬂed from the house without any consultation.
The issues in this case were whether the grounds exist for the dissolution of the marriage and whether the custody of the child be given to Petitioner.
Section 15(2)(f) of the Matrimonial Causes Act, 1979, provides for the dissolution of a marriage if it is “broken irretrievably” based on one of the speciﬁed grounds. One such ground is the spouses’ living apart for more than three years before the ﬁling of the petition. The couple lived separately for approximately three years and three months before the motion was initiated. This serves as an adequate ground for the dissolution of the marriage; no further proof of matrimonial offense is needed. Petitioner was not required to prove the existence of “irreconcilable differences or cruelty,” nor was Petitioner required to prove the existence of adultery. Under Section 17 of the Matrimonial Causes Act, 1979, the Court is required to regard the best interest of the child as the paramount consideration in deciding child custody. At the time of the trial, the child was living in the United States with Petitioner. Petitioner was willing to grant Respondent the right of visitation with his child. The Court decided that it was not in the interests of justice to move the child from the United States to Nigeria to live with Respondent’s mother and sister.
The Court held that a marriage may be dissolved, without proof of any matrimonial offense, if the parties have lived separately for a continuous period of three years prior to the date on which the petition for divorce is ﬁled. A child’s best interest remains the paramount consideration in deciding child custody.
The Court concluded that the marriage was declared dissolved, and custody of the child given to the petitioner.