THERE is no doubt that in some part of the country adultery is not a crime while in another part of the country it is criminalized. In Northern states of Nigeria, under Sections 387 and 388 of the Penal Code Act for example, it is punishable with two-year jail term and/or with a fine imposed by the Court.
Though not a crime in the southern part, it however has a severe consequence as it could form the basis for dissolution of marriage and payment of damages to the aggrieved party.
Adultery in recent times has assumed a worrisome dimension with very lethal consequences not only on matrimonial issues but has led to needless murder, injurious harm, and to say the least avoidable violence.
There have been reports in various parts of the country cases of spousal violence such as pouring of acid, stabbing, suicide and outright murder of spouses just because of infidelity. This ought not to be the case as there are legal options available for addressing cases of adultery.
For the avoidance of doubt, a victim of adultery rather than resorting to crude self-help or unlawful measures, can seek legal remedies under the matrimonial causes Act.
The remedies range from imprisonment for a term of two years and/or with a fine imposed by the Court as in Northern states in Nigeria, as provided under Sections 387 and 388 of the Penal Code Act, dissolution of the marriage (divorce) on a petition to the court and if the Court after hearing the petition is satisfied that the marriage has broken down irretrievably. See section 15(2)(b) of the Matrimonial Causes Act and the Petitioner can sue the person with whom his/her partner committed the adultery for damages. See section 31 of the Matrimonial Causes Act.
For one who approaches the Court for the dissolution of marriage on ground of adultery to succeed, the petitioner must satisfy the court that the marriage has broken down irretrievably. This means that the marriage has failed and incapable of working again. Involvement in adultery is one of the means to prove that marriage has broken down irretrievably.
The Matrimonial Causes Act under section 15(2) (b) in very clear terms provides that the court hearing a petition for divorce shall hold a marriage to have broken down irretrievably if the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
From the above section a person approaching court for dissolution of marriage, must prove that the petitioner has not condoned the act of adultery otherwise his/her relief sought will not be granted. This position of the law has received eloquent expression in the case of Alabi v Alabi.
It must be borne in mind however that adultery is not very easy to prove and can hardly be proved through direct evidence. This is because most cases of adultery take place not in market or public places but more often than not in most secret places.
To that extent, circumstantial evidence comes handy for proof of adultery. Circumstantial evidence needs not directly prove a fact in issue, it can however lead to a logical conclusion that the fact exists and other reasonable inferences to support the claim.
Evidence of transmission of venereal disease by one spouse to another, frequent visit to clubs or brothel and other similar places with a third party, can be circumstantial ground to presume that the spouse perpetrating these is committing adultery. See the cases of Okaome v Okaome (2017) ALL FWLR (pt 900) 456 at 468.per Anyanwu JCA. : Akinyemi v Akinyemi (1963) All NLR 340. Finding a spouse in sexually compromising manner could also be a circumstantial evidence of committing adultery. See Adeyemi v Adeyemi (1962) 6 LLR.70.
The birth of a child of a child within a period shorter than the time that a spouse last had intercourse with the other could be evidence of the wife committing adultery.
Similarly, a confession by an adulterous party could operate as proof except that, the Court may critically evaluate the confession to ensure it is not fabricated, particularly if the confessing party is the one gunning for a divorce. The Court more often not often than not would need corroboration in such circumstance.
For damages, a Petitioner can join the co-respondent (person with whom his/her partner committed adultery) as a party to the case demanding an award of damages against him/her as the case may be.
The court will consider the following in awarding damages.
The loss suffered by the petitioner
Injury to petitioner’s honour and feelings.
Hurt to family life. Value of the adulterous spouse to the claimant
The court will however 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. See the case of Kadiri vs. Abo.
However, if the adultery was continuously committed even over three years before the petition, an action for damages can still be maintained. This has been adumbrated in Alabi vs. Alabi where the initial act of adultery was uncovered when the husband’s mistress gave birth to a son. By the time the petition was filed, more than three years had passed. The Court none-the less upheld the wife’s claim for damages because the husband’s adultery was ongoing.
It must be clear, that the law only recognizes adultery within the context of marriage, hence you cannot legally enforce your rights against a cheating partner in a boyfriend/girlfriend relationship, or any kind of relationship other than marriage except in the case of breach of promise to marry.
