As Nigeria celebrates its 64th anniversary of independence from the United Kingdom on 1 October, it is perhaps a fitting time for Nigerians contemplating a divorce, to consider the differences between the divorce process in England and Nigeria.
The legal landscape for divorce has evolved in both countries, each with distinct features. For Nigerians living in England, understanding these differences is crucial, especially when navigating the complexities of a divorce that may involve cross-border issues.
The No-Fault Divorce System
In April 2022, England introduced a no-fault divorce system under the Divorce, Dissolution and Separation Act 2020. This reform aimed to simplify the process and reduce conflict between spouses. Under the new system, couples no longer need to assign blame. Previously, one spouse had to cite reasons such as adultery or unreasonable behaviour to file for divorce. Now, simply stating that the marriage has irretrievably broken down is sufficient.
Either spouse or both spouses can apply for a divorce. There is a minimum 20-week waiting period between the application and the conditional order (formerly known as decree nisi), offering a cooling-off and reflection period. Once the conditional order is granted, couples must wait at least six weeks before applying for the final order (formerly known as decree absolute) which legally ends the marriage.
In contrast, Nigeria still operates a fault-based divorce system. Nigerian courts require proof of specific grounds before granting a divorce, such as adultery, unreasonable behaviour, desertion or separation. This leads to the Nigerian process being more time-consuming and contentious due to the need for evidence and fault-based grounds.
What should I consider?
Jurisdiction: Where should you file
For Nigerians living in England, one of the first questions is which country will have jurisdiction over their divorce. If both spouses are habitually resident in England or one is domiciled in England, the English courts will likely have jurisdiction. However, if one spouse resides or is domiciled in Nigeria, it may have jurisdiction too and therefore there is a need to consider which jurisdiction is most appropriate (known as forum conveniens).
Competing jurisdictions can lead to an expensive and stressful a ‘jurisdiction race’ and so obtaining specialised advice rapidly is crucial in such scenarios.
Foreign Assets and Financial Settlements
Divorces involving Nigerian nationals often include assets located in Nigeria, such as land, property, or businesses. The English courts have the authority to consider foreign assets when dividing marital property, but practical enforcement of orders regarding assets in Nigeria may require separate proceedings in Nigerian courts.
English courts apply the principle of fairness when dividing assets, considering certain factors such as each spouses’ contributions to the marriage (both financial and non-financial), future needs, and earning capacities. Non-financial contributions, like caring for children, play a significant role in English financial settlements. In Nigeria, matrimonial property may be split based on who holds the title or a party’s direct financial contribution. This approach can leave the financially weaker spouse at a considerable disadvantage.
However, where a person has a connection to England and therefore may have otherwise had jurisdiction for an English divorce, then remedies may still be available after the conclusion of a Nigerian divorce – known as ‘Part III claims’.
Child Arrangements and Maintenance
If children are involved, their welfare is paramount in both English and Nigerian courts. English courts will focus on the best interests of the child, considering factors like their residence, schooling, and the relationship with both parents. Cross-border parenting arrangements can add complexity, particularly with international travel and differing custody laws.
Child maintenance in England is primarily handled by the Child Maintenance Service (CMS), with payments calculated based on the paying parent’s income. In Nigeria, child maintenance is less rigidly enforced, and parties often need to seek court intervention for support payments.
Legal advice
Cross-border divorces present unique challenges, especially when navigating issues like jurisdiction, foreign assets, and enforceability of orders across different countries. Specialist legal advice is vital to ensure that these complexities are properly managed. Family law solicitors experienced in cross-border family law can guide you through the divorce process, ensuring you make informed decisions and achieve a fair outcome.
At Rayden Solicitors, we can provide tailored legal advice to support you through every step of your divorce, from handling jurisdictional matters to preparing the necessary applications and advocating for your best interests.
If you require expert legal advice with your divorce, please do not hesitate to get in touch with one of our specialist family law solicitors.
