Judicial Separation: What Happens To Your Relationship Rights?

By S.A Sule Azeez

INTRODUCTION

I had the opportunity to appear before Honourable Justice Balogun sitting at the High Court of Lagos State, Ikeja, where he shared an anecdote with the legal practitioners present. According to him, ‘he was onboard a train in the United States of America (USA) when he encountered a couple whom he had previously granted a decree absolute to dissolve the marriage hitherto celebrated by the couple. The couple, obviously now back together, mockingly pointed at him, saying, “Isn’t this the judge who got us divorced?” This encounter highlighted that the couple were likely unaware of alternative solutions to resolve their marital issues and were instead steered towards divorce. The judge was obviously doing his job, but it is what it is.

Well, it will interest you to know that divorce isn’t the only route to be taken if you want a breathing space from your spouse. From the aforementioned scenario. It’s so evident that some spouses just want to be temporarily separated but still desire to be legally bound to each other. In this article, I’ll be taking you through one of those alternatives (judicial separation) to dissolution of marriage.

To start with, marriage is a sacred institution, but sometimes, it can become toxic, stressful, belaboring, and filled with conflict where parties fall apart and could no longer harbor the feelings that brought them together.

In Nigeria, couples in a legally recognized marriage can pursue various matrimonial remedies under the Matrimonial Causes Act, 1978. The Act, specifically Section 114, outlines these remedies to include dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights, jactitation of marriage, and custody of children in a marriage, inter alia. In this article, we will delve deeper into the concept of judicial separation. This article intends to discuss judicial separation, the grounds, and its legal implications.

GROUNDS FOR JUDICIAL SEPARATION

Judicial separation, also known as legal separation, is a legal decree issued by a court that allows married couples to live apart while still remaining legally married. It differs from dissolution of marriage (divorce), which dissolves the marriage entirely. With judicial separation, parties to a statutory marriage become practically divorced in terms of life affairs. However, they remain legally tied in marriage, thereby prohibiting either party from remarrying.

Often, couples are unaware that judicial separation is the solution they need to resolve their marital issues and find stability. At times, I am left to wonder what could have prompted couples getting back together after being successfully divorced. A typical example was an anecdote by Hon. Justice Balogun above.

The Matrimonial Causes Act provides for the concept of judicial separation in Sections 39-45. Section 39 of the Act provides that a petition for judicial separation may be brought under any of the grounds upon which divorce can be sought in Nigeria. The grounds are

1. Willfully and Persistent refusal to consummate the marriage by the respondent

2. Adultery, which the other party finds intolerable to live with.

3. Desertion by the respondent for more than 1 year.

4. Where parties have lived apart for a period of two (2) years and the respondent isn’t objecting to a decree being granted.

5. Where parties have lived apart for a period of three (3) years.

6.  Either of the parties has refused to comply with a decree for restitution of conjugal rights for at least a year

7. If the other party has been absent from the marriage for such a time as to raise reasonable presumptions of death.

Hence, it suffices to say that if a spouse has cogent evidence of the other spouse committing adultery and such spouse isn’t ready to leave the marriage, the spouse can petition for a decree of judicial separation from the adulterous spouse. This will certainly afford both parties the opportunity to pitch their tent where they both deem fit.

LEGAL IMPLICATIONS/EFFECTS OF JUDICIAL SEPARATION

There are diverse opinions on the legal effects of judicial separation. While some writers are of the opinion that the party against whom a decree of judicial separation was issued is not under any obligation to maintain the party that instituted the petition.

However, Section 41 of the Matrimonial Causes Act provides that a decree of judicial separation relieves the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation. Accordingly, during the duration of the decree for judicial separation, neither of the spouses can desert the other. Additionally, if a husband forces his wife to have intercourse against her will during this period, he may be committing rape.

This section further provides that the decree of judicial separation does not affect the marriage or the status, rights, and obligations of the parties to the marriage. In other words, during the pendency of the marriage, the couple remains married in the eyes of the law. Neither of them can remarry, and neither of the parties can establish another domicile.

A decree of judicial separation does not stop a party from suing the other in tort or in contract.

Another important effect of judicial separation is that if a spouse dies without a will (intestate) during the judicial separation, their property will be distributed as if the other spouse had predeceased them. As a result, the surviving spouse will be entitled to inherit the deceased spouse’s property.

Furthermore, another legal implication of judicial separation is that if a spouse prays the court to make an order for maintenance and the husband refuses to pay for the necessaries supplied to her during the continuance of the decree, the husband will be liable to pay for such necessaries. The reason being that the husband’s responsibility to maintain the wife is not invalidated by the decree.

CONCLUSION

Judicial separation, unlike a decree of dissolution of a marriage, doesn’t end a marriage. Rather, it enables couples to take space from each other while still lawfully married. Since it is said that a decree of judicial separation only severs cohabitation, if parties desire to resume cohabitation, they can apply to the court to have the decree discharged.

S.A Sule Azeez

For: Eko Solicitors and Advocates

Source: BarristerNG