HOW TO ENFORCE DIVORCE DECREES UNDER NIGERIAN LAW

By Adedolapo Adeyosoye Esq

Abstract

Divorce decrees are enforceable as court orders under Nigerian law. Where one party fails to comply, the other may approach the court for enforcement. In Nigeria, divorce proceedings are primarily governed by the Matrimonial Causes Act of 1970. Once the court is satisfied with the grounds for divorce, it will issue a Decree Nisi, which is a provisional order of divorce. After three months from the issuance of the Decree Nisi, if unchallenged or not appealed, the Decree automatically becomes Absolute, thereby finalising the divorce. This article examines the legal mechanisms available for enforcing divorce decrees in Nigeria and the remedies open to aggrieved parties.

Introduction

Enforcing a divorce decree in Nigeria involves utilising legal tools to ensure compliance with court orders related to divorce proceedings, including child custody, maintenance, alimony and property division. Unfortunately, parties do not always abide by these orders voluntarily.

If a party fails to comply with the Decree, the law provides several tools to protect the rights of the aggrieved party. These include garnishee proceedings, warrants of distress or commitment, and contempt proceedings, among others. The specific method of enforcement will depend on the nature of the order granted by the court.

Governing Laws

The enforcement of divorce decrees in Nigeria is supported by several laws, including:

1. Matrimonial Causes Act, Cap M7 LFN 2004 – the primary law regulating divorce and related matters.
2. Sheriffs and Civil Process Act (SCPA) – governs the enforcement of judgments and orders.
3. High Court Rules of various states – procedural rules for enforcement.
4. Child’s Rights Act 2003 (and State equivalents) – relevant where child custody/maintenance is involved.

How Divorce Orders Are Enforced in Nigeria

The method of enforcement depends on what the court has ordered in the divorce judgment:

1. Maintenance Orders (Child or Spousal Support)

If one party fails to pay maintenance as ordered by the court,[1] the other can apply to the High Court or a Court of summary jurisdiction for the enforcement of the order through:

1. Garnishee Proceeding. Garnishee proceedings are one of the most effective ways to enforce a financial order in a divorce decree. In such cases, the court can order the bank to freeze the judgment/decree debtor’s (the defaulting party) bank account, or direct the bank (or a third party) to pay the owed amount directly to the judgment/decree creditor (the party entitled to the money).[2] This process ensures that funds are taken directly from the debtor’s bank account (or from money owed to them) so that the creditor receives what the court has ordered.
2. Writ of Fieri Facias (Fifa). A Writ of Fifa, also known as an order for attachment and sale, allows the court to recover money owed by seizing and selling the defaulter’s (judgment debtor’s) moveable property. Once the order is issued, the Sheriff is empowered to take possession of the debtor’s assets and sell them. The proceeds are then used to settle the judgment debt owed to the creditor.[3]
3. Attachment of Earnings. The court can order deductions directly from the debtor’s salary.[4]
4. Committal for Contempt.  When a party persistently refuses to obey a court order, such as failing to pay maintenance or comply with custody arrangements, the court can treat this as contempt of court. In such cases, the court may order that the defaulter’s property be seized, impose fines, or, in more serious situations, sentence the person to imprisonment until they comply. This ensures that court orders are taken seriously and not ignored.
5. Property Division

Where a divorce decree orders the transfer of property, such as a house, car, or other assets, and one party refuses to comply, the other party can return to court to enforce the order. Several enforcement mechanisms are available:

1. Writ of Possession. When a judgment is made for the delivery of possession of land, it is enforced by a writ of possession. If the judgment is for the recovery of premises, it will be enforced by applying for a warrant of possession, which ensures that the spouse in default vacates the premises so that the rightful owner can take possession.
2. Writ of Fieri Facias (Writ of Attachment and Sale). This is the most common writ of execution in Nigeria. It authorises the Sheriff to seize and sell the movable property of the defaulting spouse. The proceeds from the sale are then applied to satisfy the monetary aspect of the judgment.[5]
3. Specific Performance. In situations where documents must be signed to transfer ownership (for example, title deeds or vehicle documents), the court can order specific performance, compelling the spouse to complete the transfer as directed in the divorce decree.
4. Contempt Proceedings: Where a party deliberately disobeys a court order, they can be held in contempt of court and may face penalties, including fines or imprisonment.
5. Child Custody

When a court makes an order regarding child custody or access, both parents are legally bound to comply. If one parent refuses to release a child, obstructs visitation, or otherwise disobeys the order, the other parent can return to court to seek enforcement. Enforcement may involve:

1. Contempt proceedings, where the disobedient parent may face fines or imprisonment.
2. Police or welfare officer intervention, where the court directs authorities to ensure custody transfers or protect the child’s welfare.
3. Further court orders, that are designed to secure the child’s safety and ensure that the custody arrangements are respected.[6]
4. Mediation and Alternative Dispute Resolution (ADR)

Courts may encourage mediation or ADR to resolve disputes arising from divorce decrees, which can lead to compliance without further litigation. This often reduces conflict and encourages compliance.

Limitations and Challenges of Enforcing Divorce Decrees

While the law provides several enforcement options, practical challenges exist. These include:

1. Difficulty tracing the debtor’s assets.
2. Jurisdictional issues.
3. Reluctance or delay by law enforcement agencies in carrying out orders.

Conclusion

A divorce decree must be respected and enforced. Nigerian law provides several mechanisms, including garnishee proceedings, writ of execution, attachment of earnings, committal for contempt, and specific performance. The appropriate enforcement tool depends on the particular order, that is, whether it relates to money, property, or custody. It is important for litigants to understand the procedures for the enforcement of divorce decrees in order to ensure that their rights are protected and their judgments are enforced.

Lehi Attorneys is a full-service intermediary law firm with a strong focus on helping clients deliver on their tasks by providing legal services across various jurisdictions. We have carved out a niche by providing expert advice in the commercial sector, including Intellectual Property, Real Estate, Trade Law and Policy, Corporate Law, Health and Pharmaceuticals, as well as Media and Entertainment. Further information about the firm is available at www.lehiattorneys.org
DISCLAIMER
This is a publication of Lehi Attorneys solely for educational and information purposes and is not meant to serve as legal advice. For more information, contact Lehi Attorneys at:
www.lehiattorneys.com
info@lehiattorneys.org

---

[1] Odusote v. Odusote (2012) 3 NWLR (Pt. 1288) 509 at 510 (CA)

[2] Section 83-85 of SCPA, Section 90 of MCA

[3] Section 88 of MCA

[4] Section 92 of MCA

[5] Section 92 of MCA

[6] Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 346 at 351 (CA)