INTRODUCTION TO ADULTERY IN MATRIMONIAL CAUSE

Adultery is one of those subjects that live at the intersection of morality, emotion, and law. It is as old as marriage itself. It is a betrayal that has been condemned by religion, frowned upon by culture, and, under certain circumstances, punishable by law. Yet, proving adultery in Nigeria before a court is one of the most demanding tasks in matrimonial proceedings. 

The law defines adultery as voluntary sexual intercourse between a married person and someone who isn’t their spouse. The Court of Appeal said so in Ibeabuchi v. Ibeabuchi, drawing a thin, sharp line between suspicion and evidence. For the law to believe you, it must see beyond the heartbreak; it must see proof.

As observed in Ugbotor v. Ugbotor, proving adultery requires demonstrating three essential elements:

1. There was sexual intercourse
2. It was voluntary
3. One of the parties was married.

Not every sexual encounter outside marriage amounts to adultery under the law. Voluntariness is crucial. For example, in the unfortunate circumstance that a married woman is raped, it cannot be counted against her as adultery. Similarly, any sexual activity induced by coercion, threat, or incapacity lacks the voluntary element required.

This insistence on voluntariness reflects that the law punishes betrayal, not victimhood.

Before the Matrimonial Causes Act of 1970, adultery on its own was sufficient to dissolve a marriage. All a petitioner needed to show was that the other spouse engaged in sexual intercourse with someone else while the marriage was still valid.

Today, adultery is no longer treated in isolation. Section 15(2)(b) of the MCA provides:

(2) The court hearing a petition for a decree of dissolution of a marriage shall hold  the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the   court of one or more of the following facts

(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

Standard of Proof: “Reasonable Satisfaction”

The standard of proof required in adultery cases is one of the most debated issues in Nigerian matrimonial law. According to Section 82 of the Matrimonial Causes Act, proving adultery in Nigeria must be to the reasonable satisfaction of the court.

What does this mean? The courts have interpreted it in various ways. In Oke v Oke, it was held that proof should be on a balance of probabilities which is the standard typically used in civil cases. But in Opajobi v Opajobi, the court adopted a stricter view, suggesting adultery should be proved beyond reasonable doubt, as in criminal cases.

Since adultery remains a key legal ground for divorce, the burden of proof must convince the court that it truly occurred — not merely that it might have.

Later, in Okala v Okala, the court clarified that while the older rule of “beyond reasonable doubt” is obsolete, judges still have discretion to require very convincing evidence before concluding that adultery occurred. In other words, the proof must go beyond mere probability — it must be compelling enough to leave the court reasonably satisfied.

It’s not enough to prove that adultery happened, the petitioner must also show that they find it intolerable to live with the respondent.

The tricky part is whether this intolerability must result directly from the adultery or can exist for other reasons. Courts have given mixed answers. In Goodrich v Goodrich (1971), it was held that intolerability could stand independently of adultery. But in Roper v Roper (1972) and later in Somorin v Somorin (1973), the courts ruled that intolerability must be a consequence of the adultery, not a separate issue.

Type of Evidence That Counts

Let’s be honest, nobody commits adultery in broad daylight. It’s a private act, often cloaked in secrecy. That’s why Nigerian courts usually rely on circumstantial evidence in most cases rather than direct proof. Proving adultery in Nigeria can rest on:

• Confessions: A voluntary admission by the alleged adulterer is the most straightforward form of proof.
• Witness Testimony: Statements from witnesses who observed intimate behaviour or suspicious closeness can support a claim.
• Circumstantial Indicators: Hotel receipts, text messages, photographs, or call logs showing familiarity or opportunity can build a convincing case.
• Birth Records and Medical Tests: Paternity tests or records showing that a child was conceived outside the marital relationship can be powerful evidence.
• Health Evidence: Where a spouse contracts a sexually transmitted infection traceable to a third party, courts may infer adultery.

The sanctity of marriage can not be over-emphasised. that is why under Nigerian law, adultery stands as a recognised ground for divorce.

In sum it is quite clear that in proving adultery in Nigerian courts, the law doesn’t bother itself with emotions, it deals with facts and the evidence brought before it, while emotional heartbreak may begin the case against a spouse for adultery, only facts supported by evidence will ensure the success of a suit on adultery.

Lead Partner EKO SOLICITORS AND ADVOCATES

Counsel EKO SOLICITORS AND ADVOCATES

Intern EKO SOLICITORS AND ADVOCATES

(ADULTERY IN MATRIMONIAL CAUSE, ADULTERY IN MATRIMONIAL CAUSE, ADULTERY IN MATRIMONIAL CAUSE, ADULTERY IN MATRIMONIAL CAUSE)