DIFFERENCE BETWEEN SEPARATION OF MARRIAGE AND DIVORCE
There are various suits that can be brought under Nigerian law. Amongst them are judicial separation and divorce (dissolution of marriage). Separation and divorce (dissolution of marriage) as confused by many, are not the same.
Matrimonial Causes Act 1970 is the principal law governing marital disputes and settlement in Nigeria.
WHAT IS SEPARATION OF MARRIAGE?
Under Section 41 of the Matrimonial Causes Act, judicial separation relieves the Petitioner from any obligations to cohabit but the marriage itself is not dissolved and it does not affect the status, rights, and obligations of the parties to the marriage. Separation is when the parties no longer live under the same roof but are still married. There might however be instances where they still live under the same roof but with boundaries (e.g not sleeping in the same room). This can occur for reasons such as having minor children and wanting to protect them from the trauma of parents living separately. The parties might also decide not to separate based on a court order as they can create a mutual agreement whereby, they agree to separate. This kind of separation is not sanctioned by the court. When parties are separated, they have no right to remarry.
TYPES OF SEPARATION
1. JUDICIAL SEPARATION
This is a court-ordered separation which is made in the court where matters relating to child custody, child support, spousal support, maintenance may be dealt with. It is filed in court through a petition just like a divorce
This order can be used if the parties decide to divorce in the future.
It is most relevant where one of the parties to the marriage is unlikely to consent to a mutual separation.
2. MUTUAL SEPARATION
This type of separation is not a court-ordered but created by the parties through a separation agreement that will contain issues relating to child custody, child support, spousal support, maintenance, and property.
A family lawyer can be involved in this process to mediate and put the terms of the agreement into writing. The parties can also decide whether they want to start living together again or whether they want to finally dissolve the marriage by virtue of the agreement
WHAT IS DIVORCE?
A divorce can be defined as a legal dissolution of a marriage between couples. It is the process of completely terminating a marriage between parties.
In a divorce process, there is a court order to dissolve the marriage totally, which is to bring the marriage to a permanent end. A divorce or dissolution of marriage takes place on the ground that the marriage has broken down irretrievably under Section 15(1) of the Matrimonial Causes Act.
GROUNDS UPON WHICH A DIVORCE CAN TAKE PLACE
A divorce takes place under just one ground and this is that the marriage has broken down irretrievably under Section 15(1) of the Matrimonial Causes Act. However, there are facts that must be proven in order to convince the court that the marriage has actually broken down which are provided for under Section 15(2) of the Matrimonial Causes Act (same as the ground for separation of marriage) which are: refusal to consummate the marriage; adultery; intolerable behavior; desertion for up to one year; living apart for two years with the consent of another party; living apart for 3 years, presumption that the party to the marriage is dead.
It is compulsory that this fact is actually proven as stated in the case of Nanna v Nanna (2006).
A divorce comes to an end upon the decree of a court becoming absolute as provided for under Section 33 of the Matrimonial Causes Act. The parties to a concluded dissolve can remarry to another person after the decree has become absolute.
SUMMARY OF DIFFERENCES BETWEEN SEPARATION AND DIVORCE
- The first and most obvious thing is that in separation, the marriage is still legally intact, but the couple is not under the obligation to cohabit. The couple involved in a separation can come back together anytime they wish to and start cohabiting. Under divorce, however, the marriage is brought to a permanent end and the ex-couple is allowed to remarry to anyone else.
- A judicial separation is not final as it could either lead to the couple coming back together or lead to a divorce but under a divorce, it is a final order.
- Under separation, there are still marriage obligations that are existing. For instance, if a party to the marriage dies intestate, the property will be dealt with as if they were still married while a divorce ends all such obligations.
- A divorce petition is brought on the ground that the marriage has come to an end and there cannot be a solution anymore while separation although shares some similar facts with divorce, it cannot be brought under the ground that the marriage has broken down irretrievably.
- There is only one ground for dissolution of marriage which is that the marriage has broken down irretrievably and there are 8 facts, one of which must be proven in order to show get a divorce. The 8 facts under a dissolution of marriage are the actual grounds for separation, not that the marriage has broken down irretrievably. This is so because separation is not intended to end a marriage.
Conclusively, separation be it mutual or judicial gives both parties time to take a break from the marriage and eventually decide whether or not they want to remain married or go their separate ways.
Also, while separated, the couple will still enjoy some benefits that married people enjoy. Ultimately, the major difference between a separation and divorce is whether or not the marriage has totally come to an end and the fact that the marriage, under separation, might still be revived in the future.
By Family Law Team at Resolution Law Firm