LSP065: Whether joinder of adulterers is a requirement for dissolution of marriage on the grounds of adultery

Adultery is one of the facts which must be proved by a petitioner, in a divorce proceeding case, to establish the irretrievable breakdown of the marriage. A court will conclude that a marriage has broken down irretrievably if the respondent has committed adultery and the petitioner has found it intolerable to live with the respondent.

In Ibeabuchi v Ibeabuchi (2016) LPELR -CA/K/322.2012, adultery was defined as consensual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage. 

In a divorce proceeding, is the petitioner required to join the third party with whom the adultery was committed in the suit? Is there any legal implication if the third party is not made a party to the suit? Putting it in perspective, Tunde and Mary are married. During the subsistence of that marriage, Mary committed adultery with Raymond. Tunde has now decided to end the marriage. Is he expected to join Raymond in the suit against Mary?

In Nigeria, the principal law regulating the dissolution of marriage is the Matrimonial Causes Act. The Act, in section 32(1), made the joinder of adulterers a requirement in the dissolution of marriage. The section reads as follow: where, in a petition for a decree of dissolution of marriage or in an answer to such a petition, a party to the marriage is alleged to have committed adultery with a   specified person, whether or not a decree of dissolution of marriage is sought on the basis of that allegation, that person shall, except as provided by rules of court, be made a party to the proceed. 

In Eigbe V. Eigbe (2012) LPELR 19690, the Court held that: “joinder of adulterers is a must requirement of the law. Where such adulterers are not joined, the petitioner cannot use any legal process for dissolution of marriage on that ground. The law is already settled that where a statute provides a means by which an action must be commenced, legal proceedings cannot be commenced by any other means.

The effect of non-compliance with this procedure would rob the court of the jurisdiction to entertain the matter and if entertained, the proceeding would be null and void. See Ebe V. Ebe (2004) 3 NWLR (Pt.860) 215.

This legal puzzle came up for determination in the case of Umar v Umar (2022) LPELR -57114(CA). In that case, the petitioner not only made an allegation of adultery against the Appellant but went on to attach to the petition, the photograph of the alleged adulterer, yet he was not joined as a Respondent in the petition. On Appeal, the Court set aside the judgment of the trial court, and all the orders made in favoured of the petitioner/ respondent were vacated. 

Moving on, the only exceptions where the requirement of joinder would be dispensed are provided under the Matrimonial Causes Rules Order IX. They are: 

(1) When the adulterer is dead

(2) When the alleged adulterer is under the age of 14 years.

(3) When the alleged adulterer is an infant under the age of 21 years with whom incest is committed by either of the parties to the petition.

In conclusion, the principle of law is that in a divorce proceeding where adultery is alleged, the person with whom the respondent committed the alleged adultery must be joined as a party unless the aforementioned exceptions apply.

Thank you for reading. See you next week.🙏