NO FAULT DIVORCE AND ITS APPLICABILITY IN NIGERIA AND AUSTRALIA: A COMPARATIVE APPROACH

Abstract

Marriage is a sacred institution in which the basic unit of society (family) is rooted.
Towards preserving the sanctity of marriage and maintaining order in society, States
provide guidelines for the celebration and dissolution of marriages. Like the Nigerian
Matrimonial Causes Act, (MCA) 1970, the Family Law Act (FLA) of Australia, 1975
provides for a sole ground on which a marriage may be dissolved; which is that the
marriage has broken down irretrievably. However, both statutes differ on facts that can be
led in proof of this ground. Adopting the doctrinal research method, this paper examines
the FLA, 1975 and relevant subsidiary legislation in Australia with the aim of highlighting
the procedure for no-fault divorce in Australia, and identifying lessons for Nigeria, if any.
The paper finds, among other things, that under the FLA 1975, the provision on living
apart as a fact in proof of irretrievable breakdown of marriage recognises that spouses
may be living apart while still sharing an accommodation. Unlike the FLA, 1975, the MCA,
1970 tries to strike a balance in its application of the fault and no-fault principles.
However, there is room for strengthening its provisions. The paper therefore recommends,
among other things, that the MCA, 1970 amended to reflect a definition of ‘living apart’
that accommodates spouses who are living apart under one roof in Nigeria.