By Oluwafemi Kater .I Esq, ACArb
Introduction
Divorce is not just a legal separation but also a deeply personal and often painful experience for the couple. In Nigeria, Statutory divorce is governed by the Matrimonial Causes Act 1970, which sets out the legal framework for the dissolution of marriages. But what options exist for couples that wish to end their marriage amicably outside of full litigation? Can they use terms of settlement to resolve matters privately and walk away with a binding agreement?
This article examines whether terms of settlement, an out-of-court resolution tool commonly used in Alternative Dispute Resolution, can be used to finalise divorces under Nigerian Law. It also discusses the limits, legality and enforceability of such terms in family law proceedings.
Legal Framework for Divorce in Nigeria
Nigeria recognises two main types of marriages: statutory marriages, governed by the Matrimonial Causes Act (MCA) 1970 and commonly referred to as “court marriages”, and customary or Islamic marriages, which are governed by Customary Law and Islamic Law respectively.
Understanding the limits of terms of settlement in statutory divorce requires a comparison with customary and Islamic divorce processes, where informal agreements are more readily accepted. Under Customary Law, divorce is often facilitated by family members and community elders.[1] The process typically allows for negotiated settlements on issues such as return of the bride price, custody of the children, and property sharing, often without formal court involvement. Similarly, Islamic divorces, such as those conducted through ‘talaq’ or ‘khul,’[2] may involve religious procedures but are generally less formal and faster.
In contrast, statutory divorce follows a structured legal process (backed by evidential requirements) strictly governed by the MCA 1970. The High Court must be satisfied that the marriage has broken down irretrievably, regardless of any private agreement between parties. This reflects the public interest role of the courts in ensuring that issues of marriage and divorce, particularly those involving children and spousal rights, are not left entirely to private discretion. The result is a more structured, court-supervised process for statutory marriages, where terms of settlements may assist but cannot replace the judicial function of dissolving a statutory marriage.
What are Terms of Settlement?
Terms of settlement refer to an agreement reached by parties in litigation, usually outside the Courtroom, wherein the disputing parties compromise and resolve their case without proceeding to full trial. Once adopted by the court, this agreement becomes a consent judgment, carrying the same legal weight as any other judgment given by a court of law. In Lawson v. Okoronkwo,[3] the Court described terms of settlement as:
“In the spirit of the role of the judex, which is to encourage amicable settlement of dispute out of court, terms of settlement are a major pillar in modern adjudication. Terms of settlement are amicable settlement by parties out of court of their dispute without going to the merits of the matter or appeal. Terms of settlement, according to Black’s Law Dictionary 9th Edition, form or constitute a compromise agreement between the parties in litigation. It is a contract whereby new rights are recreated in substitution for and in consideration of the abandonment of the claim or claims pending the court. The essence of this compromise agreement, in the words of Adekeye, JSC in S.P.M. Ltd v. Adetunji[4] “is to put a stop to litigation between the parties just as much as is a judgment which results in the normal proceedings in a matter heard on its merits.” It is not, however, a judgment on the merits of the case, though it creates an enforceable right.”
Terms of settlement, therefore, is a contract that creates new rights in substitution for, and in consideration of, the abandonment of the pending claim before the Court. However, in matrimonial proceedings, their application is not always straightforward.
When are Terms of Settlement Binding?
Under Nigerian Law, terms of settlement are not automatically binding unless adopted by the Court. As held in Ras Pal Gazi Construction Company v. FCDA,[5] Katsina-Alu, J.S.C. (as he then was) stated thus:
“I must point out here that unless and until the Court makes the terms of settlement a judgment of the court, it is not binding and cannot therefore be enforced. It is a rule of practice that parties may settle their dispute by consent in the course of the trial. Such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court. So when the court adopts the terms of settlement and makes it its judgment, then the settlement assumes the status of a consent judgment binding upon the parties.”[6]
Similarly, in C.B.N. v. Holt Interstella Communications Ltd. &Ors. (2017) LPELR-43940(SC) (Pp. 97-99 paras. E), (reported as C.B.N. v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294) on the sacrosanctity and bindingness of terms of settlement held thus:
“…Parties to an agreement are bound by the clear words of the agreement, so when a party agrees to pay Twelve Billion Naira (N12B) in full and final payment of a judgment sum the parties have so agreed, and such an agreement can only be set aside by fraud, misrepresentation mistake, undue influence…”
Thus, the Court retains the discretion to set aside terms of settlement. Even a consent judgment may be set aside if it constitutes an abuse of court process, as stated in Haastrup Line (WA) Ltd v. Wichie (2024) 16 NWLR (Pt. 1963) 41.
Can Terms of Settlement be Used to Dissolve a Statutory Marriage?
The short answer is no.
For statutory marriages, the dissolution process must follow the procedure set out in the Matrimonial Causes Act. A party seeking dissolution must file a petition to prove that the marriage has irretrievably broken down as per Section 15(1) of the MCA 1970. The process involves filing a petition and obtaining two Court orders:
- Decree Nisi.[7] A provisional order granted when the court is satisfied that grounds for divorce exist.[8]
- Decree Absolute.[9] The final order that legally ends the marriage.
Section 2 of the MCA 1970 confers jurisdiction on the High Courts of the various states to determine matrimonial causes under the Act. Accordingly, while parties may reach agreement on issues arising from the breakdown of the marriage, the court retains exclusive authority to dissolve the marriage itself, as divorce is a matter of public interest.[10] The court must be satisfied that the legal grounds for dissolution exist. Terms of settlement cannot replace the judicial function of granting a divorce decree. However, they may be used to settle ancillary matters such as:
- Custody and maintenance of children.
- Spousal support.
- Property division.
- Allocation of debts.
- Legal costs.
These matters, although connected to the divorce, can be resolved outside of litigation and presented to the Court for approval as part of a consent judgement, but not as grounds for ending the marriage itself.
Use of Alternative Dispute Resolution (ADR) in Divorce: How Far Can It Go?
ADR refers to the mechanisms through which parties resolve disputes without resorting to litigation. It is a valuable tool that can be used in resolving disputes. While ADR can help couples resolve key issues amicably, it cannot dissolve a statutory marriage. Only the High Court, acting under the MCA 1970, has jurisdiction to do so.
That said, ADR can be highly effective in resolving ancillary matters, such as financial arrangements, custody, and visitation rights. If both parties reach an agreement through ADR, the petitioner may withdraw the petition, but the couple will remain legally married until a decree absolute is granted. Common ADR mechanisms include:
- Mediation. A neutral third party facilitates dialogue between spouses to help them reach a mutual agreement.
- Arbitration. An Arbitrator hears both parties and makes a binding decision informed by evidence presented. However, arbitration cannot be used to dissolve marriages under the current Nigerian law.
Although the Arbitration and Mediation Act 2023 provides a framework for resolving civil and commercial disputes, it does not apply to matrimonial causes under the MCA 1970.
Legal and Practical Significance
Litigating divorce in Court is often emotionally and financially draining. Many couples would prefer to handle their separation quietly, respectfully and efficiently. However, the law does not currently permit divorce through private agreement alone. This is because the courts are not merely referees in personal disputes, they are also guardians of public policy, especially where children and family structures are involved.
Conclusion
While terms of settlement provide a useful mechanism for resolving ancillary issues such as child custody, spousal support, and property sharing, they cannot be used to dissolve a statutory marriage under Nigerian law. Only the courts, following the process set out in the Matrimonial Causes Act 1970, can legally end such a union.
There may be merit in exploring future reforms to allow for consensual divorce through mediation or other non-adversarial means. Such reforms could reduce court congestion and promote more humane, efficient separations. Until then, however, parties must approach the courts for divorce. Though with the help of ADR, they can make the process less combative and more collaborative.
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[1] Bright E. Oniha, “Dissolution of Marriage and Custody of Children Under Customary Law in Nigeria”
[2] Lawal Mohammed Bani and Hamza A Pate, ‘Dissolution of Marriage (Divorce) under Islamic Law’ (2015) 42 Journal of Law, Policy and Globalization 1.
[3] (2019) 3 NWLR (Pt. 1658) 66 at 74 paras G-H
[4] (2009)13 NWLR (Pt. 1159) 647 (SC),
[5] (2001) LPELR- 2941 (SC), (2001) 10 NWLR (Pt. 722) 559
[6] See Woluchem v. Wokoma (1974) 1 ALL NLR 605 at 617 (Reprint) (1974) ALLER. 543.
[7] Section 56 of the MCA 1970
[8] <https://www.aticuslaw.co.uk/what-is-the-difference-between-a-decree-nisi-and-decree-absolute/> accessed
[9] Section 58 of the MCA 1970
[10] <https://chamanlawfirm.com/defenses-and-bars-to-a-petition-for-divorce-2/> accessed