Legal Separation is one of the decrees a Court can pronounce in matrimonial Causes, and the petition for a legal separation can be instituted under the Matrimonial Causes Act 1970. It is an alternative option to divorce. Where an order of Legal separation (or judicial separation) is granted, the couple’s ceases to cohabit; they live apart but still remains legally married to each other. In a judicial separation, the couples are estopped from remarrying, because such separation does not affect the rights, status and obligations of the parties to the existing marriage.
The legal separation is different from the dissolution of marriage because, in a dissolution of marriage, the parties cease to have any legal duties or obligation to each other. A decree absolute in the dissolution of a marriage brings an end to the marriage and the parties can remarry as if the marriage had been dissolved by death while the judicial separation does not dissolve a marriage.
The process used in instituting a legal separation in Nigeria is by a Petition filed at any High Court in Nigeria.
The grounds upon which an action for judicial separation can be instituted are provided under the section 39 of the Matrimonial Causes Act. The petitioner does not need to prove that the marriage has broken down irretrievably as required for the grounds for dissolution rather the petitioner just needs to prove facts as provided under the section 15 of the Act.
Section 15 of the Act provides for facts as grounds for judicial separation as follows:
- That the respondent has refused to consummate the marriage
- That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with
- That since the marriage the respondent has behaved in a way that the petitioner cannot be reasonably expected to live with the respondent. Behaviours such as sodomy, bestiality, habitual drunkenness and drug addiction, criminal convictions and unsound mind.
- That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition
- The petitioner can also state the fact that the parties have lived apart for a period of 3 years immediately the presentation of the petition.
- The parties have for not less than 1 year failed to comply with a decree or restitution of conjugal rights made by the High Court.
Furthermore, a married person whose conduct constitutes just cause or on the excuse of the other party to the marriage lives separately will be deemed to have willfully deserted the other party without any just cause or excuse, and such the affected party can apply for a decree of judicial separation.
Effect of Judicial Separation
A decree of Judicial Separation when ordered by the Court relives the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation but it does not affect the marriage or the status, right and obligations of the parties to the marriage.
Under Section 44 of the Act, it states that a decree of Judicial Separation does not prevent the institution of the petition for divorce if either party to the marriage chooses to petition for a decree of dissolution of marriage.
It is also important to note that, the court, where the parties voluntarily resume to start cohabiting, can discharge a decree of Judicial Separation. This is done by both parties applying to the court for an order discharging the decree as provided under Section 45 of the Act.
In a decree of judicial or legal separation in Nigeria, the parties are relieved of their legal duties and obligation to live together. However, legal separation does not prevent the institution of dissolution of marriage on the same facts where one party wish to file for a divorce. What this means is that when instituting an action for dissolution of marriage, judicial separation can be used as a fact in proving grounds for the dissolution of marriage.
The judicial separation is not a final order, and it can be applied for at any time of the marriage and can be altered, modified and discharged upon the consent of both parties to cohabit with each other.
Written by the Family Law Department at Resolution Law Firm, Nigeria
Email: [email protected]