Friday, 20 July 2018

ADULTERY AND DAMAGES

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The meaning of adultery is not in doubt, and a definition of adultery is a mere surplusage which I would engage in nonetheless.
‘Adultery has been 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’.[1]

Marriage is a sacred institution recognised and respected by law, hence, the law ensures that its sanctity is preserved and in the sad event that its sanctity is violated by a third party, there exists some remedy in damages against such third party in favour of the aggrieved party. This remedy is only available to a person who contracted a monogamous marriage under the Marriage Act.

In the Northern part of Nigeria where the Penal Code Act applies and in States which have adopted the Sharia law, adultery is a criminal offence. However, in the Southern part of Nigeria where the criminal code Act applies, adultery is not a criminal offence.

Adultery is a matrimonial wrong which can entitle a person to the dissolution of the marriage, where the petitioner shows that since the marriage the petitioner has committed adultery and the petitioner finds it intolerable to live with the respondent.

When adultery is alleged, it is essential that the person with whom the adultery was committed is included as a party to the petition for dissolution of marriage; such a person ought to be made a Co-respondent in order for the aggrieved petitioner to be able to claim damages against the person.  The relief of the aggrieved spouse against the spouse guilty of adultery is a dissolution of the marriage and the relief against the person with whom the spouse committed the adultery is damages. Damages cannot be recovered against the spouse who committed adultery.[2]

An allegation of adultery cannot be based on suspicion, emotion and induced speculation, it must be borne out by facts and evidence. Of course, the law recognises that it is only in rare cases that direct evidence of adultery can be given, so there are other ways of proving an allegation of adultery, adultery would therefore be inferred in the following circumstances:
  1. Evidence of disposition and opportunity for sexual intercourse with a person other than a spouse. The birth of a child outside one’s home during the subsistence of a valid marriage has been held to be proof of adultery. The court of Appeal stated thus in a case where adultery was alleged. ‘In this case the birth of two sons during the subsistence of the marriage of the appellant and respondent shows antecedent conduct that the association of the appellant and Aramide was so intimate and their mutual passion so clear that adultery might reasonably be and in fact can be inferred as a result of the opportunity of the occurrence.’[3]
  2. General cohabitation: where cohabitation is established between the respondent and a third party, adultery would be presumed between them.
  3. Confession and Admission of Adultery.
  4. Entry of Register of Birth/ birth of a child: the courts have held that entry of birth which omits the name of the child's father or simply gives a name other than the husband’s name amounts to admission of adultery. The birth of a child outside wedlock during the subsistence of a valid marriage also raises the presumption of adultery.
  5. Frequent Visits to The Hotels: frequent visits of a husband to a hotel raises a presumption of adultery.
  6. Venereal disease: if the petitioner is able to establish that the respondent had contacted a venereal disease from a third party during the subsistence of the marriage, it raises the presumption of adultery.The right to seek a dissolution of marriage and damages from a third party on the ground of adultery is extinguished if the petitioner is shown to have condoned the adultery and if an action for dissolution of the marriage and damages is not commenced within three years of the commission of the adultery. The fact that the petitioner condoned one act or acts of adultery with one particular person does not amount to condonation of adultery with another person or with several other persons.
In a case where a respondent stated that ‘I did not allow this to affect my relationship with him. I only advised him as his wife to be more careful so that we can have a peaceful home.’[4], the court held her to have condoned her husband’s adultery but acknowledged the difficulties a spouse stuck with an unfaithful partner faces and the inherent challenges it poses when the court continued thus;

Need we blame this woman for trying to save her marriage of barely eight months old? I am of the view that sometimes in trying to be legalistic we loose (sic) the essence of Christian marriage, which the parties in this case entered into…….. Perhaps the respondent was still smarting under the marriage oath, which she took before the congregation and God…..

The appellant on the other hand was oblivious of this mutual promise but like the typical African, he must imbibe the concept of "spare tyre" by maintaining Aramide and a harem of women because he is the head of the family to whom his wife must submit. Thus in spite of the tolerance or condonation he persisted on his unbridled sexual escapades with women of
easy virtue in his house and hotels.[5]
 
The rationale behind awarding damages to an aggrieved spouse has been that damages on grounds of adultery are not compensatory for the loss which the petitioner has suffered, and consideration maybe given to such matters as damage done to the petitioner by the blow to his honour, the hurt to his family life and injury to his feelings. Thus, in the assessment of damages to be awarded in favour of an aggrieved petitioner, the following factors are considered:
  • The value of the adulterous spouse to the claimant/petitioner;
  • Injury to the claimant/petitioner's feelings;
  • the co-respondent's means and conduct; and
  • The co-respondent's knowledge that the adulterous spouse is married.


 
 
 
 
 

[1] Ibeabuchi V. Ibeabuchi (2016) LPELR-41268(CA)
[2] Section 31(1) of the Matrimonial Causes Act
[3] Alabi V. Alabi (2007) LPELR-8203(CA)
[4] Alabi V. Alabi (2007) LPELR-8203(CA)
[5] Per Aguba JCA in Alabi V. Alabi

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