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Published online by Cambridge University Press: 28 July 2009
Adultery is one of the cardinal sins in the Ten Commandments and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law. Of particular gravity was adultery by a wife which was described as being unforgivable by a husband, for while a husband could divorce his wife on the sole basis of her adultery, a wife had to prove other material facts in addition to her husban's adultery in order to obtain a similar relief.
Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman. Although pre-set grounds for divorce are non-existent and unnecessary at customary law, adultery may well be a vital reason why a man would want to divorce his wife. Under the Matrimonial Causes Act adultery, coupled with intolerability, is one of the listed grounds for divorce the proof of which is proof of “irretrievable breakdown” of the marriage.
The object of this article is to examine the judicial concept of adultery, intolerability and damages for adultery.
1 See Cretney, S. M., Principles of Family Law, London, 4th Edition 1984 at 100.Google Scholar
2 See Hansard, (3rd ser.) vol. 145, col. 490.Google Scholar The reason was the grim possibility of the husband being deceived into accepting illegitimate children as his.
3 Cretney, op. cit., note 1. She had to prove facts like cruelty, bigamy, rape, sodomy or bestiality on his part as well.
4 See e.g. The Customary Law Manual of Imo and Anambra States, Enugu, 1977, at 278.Google Scholar
5 Formerly Decree 1970 Laws of the Federation of Nigeria and Lagos, hereinafter referred to as the M.C.A.
6 M.C.A. ss. 15, 16.
7 This has been argued to be the sole ground for divorce.
8 In Sapsford v. Sapsford and Furtado [1954] 2 All E.R. 373.Google Scholar
9 Bromley, P. M. and Lowe, N. V., Family Law, London, 7th ed. 1987 at 176;Google Scholar See also Adesanya, S. A., Laws of Matrimonial Causes, Ibadan University Press, 1973 at 49;Google ScholarNwogugu, E. I., Family Law in Nigeria, Ibadan, 1974, at 135.Google Scholar
10 S v. S (O orse P. Intervening; B cited) [1962] P. 133;Google ScholarYarrow v. Yarrow, [1892] P. 92 at 94:Google ScholarFridman, , “Marital Incompetency”, (1964) 80 L.Q.R. 84, at 96–98.Google Scholar
11 Goshawk v. Goshawk (1965), 109 Sol. Journal 290, per Rees, J.Google Scholar
12 See R. v. Majewski [1976] 2 All E.R. 142Google Scholar where the House of Lords held that “self-induced intoxication is no defence to a criminal charge”. Bromley argues that the same probably applies to adultery.
13 But this is provided that she did not put herself in a position where she knew this was possible.
14 See Benton v. Benton [1958] P. 12 (C.A.).Google Scholar
15 Redpath v. Redpath [1950] 1 All E.R. 600 (C.A.).Google Scholar
16 See Bromley, & Lowe, , op. cit. at 84; W (otherwise K) v. W [1967] 3 All E.R. 178.Google Scholar
17 Sapsford v. Sapsford above, n. 8.
18 Per Karminski J. in Sapsford v. Sapsford, above.
19 Dennis v. Dennis [1955] 2 All E.R. 51.Google Scholar
20 Sapsford v. Sapsford, above, n. 8.
21 This is in view of the definition of adultery. It appears also that a married man who has sexual intercourse with a man who became a “woman” through a sex change has not committed adultery since the “woman” is still biologically and legally a man. See Corbett v. Corbett [1971] P. 83.Google Scholar
22 See Bartholomew, G. W., “Legal Implications of Artificial Insemination”, (1958) 21 M.L.R. 236.Google Scholar
23 (1958)S.L.T. 12.Google Scholar
24 (1921) 49 Ontario L.R. 15.Google Scholar
25 The problem is that if artificial insemination is regarded as adultery it will not be easy to say precisely with whom the adultery is committed. Is it the donor of the semen or the transplant doctor who may even be a female? This will not be accepted as adultery unless there is a total redefinition of adultery.
26 G. W. Bartholomew, op. cit., n. 22.
27 Contrast with Nwogugu who appears to have expressed the view that the husband can conclusively prove adultery by evidence that he did not have access to his wife during the period the child could have been conceived. Nwogugu, op. cit. n. 9.
28 By virtue of section 4 of the State Court (Federal Jurisdiction) Act cap, 177, 1958. Laws of the Federation of Nigeria and Lagos.
29 Bromley, op. cit., at 178.
30 Fajembola v. Fajembola (1974) 12 C.C.H.C.J. 1873;Google ScholarOke v. Oke (1972) 2 U.I.L.R. 124;Google ScholarOseni v. Oseni (1972) 12 C.C.H.C.J. 110;Google ScholarAmbe v. Ambe (1975) U.I.L.R. 138.Google Scholar
31 In Ubuso v. Ubuso (1976) 1 N.M.L.R. 158,Google Scholar Amissah, J., held that mere evidence of confession of adultery by the respondent was not sufficient proof of adultery.
32 Soetan v. Soetan (1973) 4 C.C.H.C.J. 71.Google Scholar
33 (1972)2 U.I.L.R. 124.Google Scholar
34 (1980) 7–9 C.C.H.C.J. 295.Google Scholar
35 (1980) F.N.R. 217.Google Scholar
36 Ubuso v. Ubuso (1976) 1 N.M.L.R. 158.Google Scholar
37 (1973) 3 E.C.S.L.R. 67.Google Scholar Contrast with the view of S. A. Adedanya, op. cit., at 52, footnote 1, where he suggested that the standard of proof now required is that of a balance of probabilities.
38 (1974) 1 N.M.L.R. 363 (Supreme Court).Google Scholar
39 Author's emphasis.
40 Section 1(2)(A) of the English Matrimonial Causes Act 1973.
41 [1971] 2 All E.R. 1340.Google Scholar
42 (1972) 1 W.L.R. 1314.Google Scholar
43 In so far as judicial precedent is concerned the Court of Appeal is bound to apply its own previous decision. The lower courts are also bound to apply Cleary v. Cleary. In Carr v. Can, [1974]; 1 All E.R. 1193Google Scholar a differently constituted Court of Appeal expressed doubts about the correctness of the interpretation of Cleary.
44 [1974] 1 All E.R. 498, C.A.Google Scholar
45 E.g. Labode v. Labode (1972) 1 N.M.L.R. 195per Odesanya, J.Google Scholar; Oseni v. Oseni (1972) 12 C.C.H.C.J. 110per Dosunmu, J.Google Scholar; Agu v. Agu (1972) 2 E.C.S.L.R. 452, per Anya, J.Google Scholar; Bazunu v. Bazunu (1975) 5 U.I.L.R. 125, per Omo, J.Google Scholar
46 Somorin v. Somorin (1973) 10 C.C.H.C.J. 103Google Scholar; Okala v. Okala above, n. 37; Ibeawuchi v. Ibeawuchi (1973) E.C.S.L.R. 56.Google Scholar
47 Suit No. A/7/71 (unreported), High Court Asaba.
48 Above, n. 45.
49 (1972) 2 U.I.L.R. 500.Google Scholar See also Labode v. Labode (1972) 1 N.M.L.R. 195.Google Scholar
50 (1973) 10 C.C.H.C.J. 103.Google Scholar
51 See however Labode v. Labode (1972) 1 N.M.L.R. 195 where Odesanya, J.Google Scholar, said that a husband who is committing adultery himself can find life intolerable with a wife who has committed adultery. He said that “social reality in Nigeria is such that husbands often find life intolerable with their wives even when they themselves flourish in adultery openly”.
52 See Eekelaar, J. M. (1974) 90 L.Q.R. 292.Google Scholar
53 Ibid.
54 Somorin v. Somorin (1973) 10 C.C.H.C.J. 103.Google Scholar He said that this was clear when section 15(2)(b) was read in conjunction with section 28 of the M.C.A. which contains discretionary bars to divorce.
55 (1977) 1 C.C.H.C.J. 59Google Scholar; See also Oliyidt v. Otiyide (1980) 7–9 C.C.H.C.J. 295.Google Scholar
56 (1975) 12 C.C.H.C.J. 2065.Google Scholar
57 (1975) 5 U.I.L.R. 125.Google Scholar See also Okala v. Okala (1973) 3 E.C.S.L.R. 67.Google Scholar
58 Ibiwttye v. Ibiwqye (1980) 1–3 C.C.H.C.J. 78.Google Scholar
59 Bakare v. Bakare (1972) 2 U.I.L.R. 500.Google Scholar But see Somorin v. Somorin, above, n.46.
60 (1975) 5 U.I.L.R. 138.Google Scholar
61 (1972) 2 U.I.L.R. 435.Google Scholar See also Fajembola v. Fajembola (1974) 12 C.C.H.C.J. 1873Google Scholar where it was held that the husband established intolerability by proving that he caught the wife having sex with their driver and on another occasion with their house-boy.
62 (1980) 1–3 C.C.H.C.J. 78.Google Scholar
63 (1974) 1 N.M.L.R. 363 (S.C.).Google Scholar
64 (1972) 2 U.I.L.R. 124per Olatawura, J.Google Scholar
65 See Bromley, & Webb, , Family Law, Wellington, 1974.Google Scholar
66 See Ashurst, J., in Weedon v. Timbrell (1793) 5 Term Rep. 357 at 360.Google Scholar
67 Law Reform (Miscellaneous Provisions) Act 1970 of England.
68 The provision was held to be mandatory in Onile Ere v. Oladapo Williams (1974) 1 N.M.L.R. 363 (S.C.).Google Scholar Therefore if it is not proved that the adultery was committed within three years of the petition, damages will not be awarded. See also Irinoyt v. Irinoye (1972) 1 N.M.L.R. 288.Google Scholar
69 See section 31(2) M.C.A. See however Irinoye v. Irinoye (1972) 1 N.M.L.R. 288Google Scholar where Lambo, J., appeared to suggest that damages would be awarded in respect of revived adultery.
70 See section 31(2) M.C.A. See also Bazunu v. Bazunu (1975) 5 U.I.L.R. 125per Omo, J.Google Scholar
71 E.g. in Udenze v. Udenze (1977) 1 C.C.H.C.J. 59 by Bada, J.Google Scholar; Ibiwoye v. Ibiwoye (1980) 1–3 C.C.H.C.J. 78 by Okurubido, J.Google Scholar; Apena v. Apena (1978) I.L.R.N. 123 by Adio, J.Google Scholar
72 See Akapo v. Akapo (1972) 11 C.C.H.C.J. 105Google Scholar; Ambe v. Ambe (1975) 5 U.I.L.R. 138.Google Scholar
73 Onile Ere v. Oladapo Williams (1974) 1 N.M.L.R. 363 (S.C.).Google Scholar
74 Ambe v. Ambe, above. It was however held in Apena v. Apena that a co-respondent is not liable in damages for adultery if it is proved that he had no knowledge that the respondent was married at the time of the adultery. Ignorance must not have been the result of carelessness on his part.
75 See Ambe v. Ambe, above.
76 Ibiwoye v. Ibiwoye, above.
77 (1977) 1 C.C.H.C.J. 59.Google Scholar
78 (1974) 4 C.C.H.C.J. 469.Google Scholar
79 (1980) 1 L.R.N. 123.Google Scholar
80 Akapo v. Akapo (1972) 11 C.C.H.C.J. 105.Google Scholar
81 The amount of damages is generally not above N500 even where the wife had been proved to be virtuous, devoted and of great value to her husband. In Akapo v. Akapo, above, Kassim, J., said that the measure of damages must take account of the changing social norm but did not expatiate on this. He awarded 
400.
82 (1980) 1–3 C.C.H.C.J. 78.Google Scholar See also Udenze v. Udenze, above, where 900 damages were awarded to the injured husband. No reasons were provided for the award.
83 (1972) 1 N.M.L.R. 58.Google Scholar
84 E. G. in Labode v. Labode, above n. 51Google Scholar; Eyo v. Eyo (1972) 1 N.M.L.R. 164.Google Scholar The cases indicate that Nigerian society generally views adultery by men much less seriously than it does the commission of the same act by women. Indeed Nigerian women would rarely divorce their husbands of the sole ground of adultery.
85 But this is expected in a country where polygamy is widely practised. A large majority of the women would rather fight to win back their husbands than take the “foolish” step of instituting a divorce.