- JUDICIAL SEPARATION
- GROUNDS FOR JUDICIAL SEPARATION
- BARS AND DEFENSES TO PETITION
- EFFECT OF THE DECREE
- DIVORCE
- DISCHARGE OF DECREE ON RESUMPTION OF COHABILITATION
- PETITION FOR JUDICIAL SEPARATION
- DISSOLUTION OF MARRIAGE BY DEATH
Judicial Separation in Nigeria
Judicial separation is a legal process by which a married couple can formalize a separation while remaining legally married. This process allows couples to live apart without divorcing. Judicial separation can be sought for various reasons, including religious beliefs, personal convictions, or the hope of reconciliation.
Grounds for Judicial Separation
The grounds for judicial separation in Nigeria are similar to those for divorce as codified under sections 15 and 16 of the the Matrimonial Causes Act. They include:
1.Adultery - this is where one spouse engages in sexual relations with someone outside the marriage.
2.Unreasonable Behavior - this is where one spouse behaves in such a way that the other cannot reasonably be expected to live with them.
3.Desertion - this is where one spouse deserts the other for a continuous period of at least one year immediately preceding the presentation of the petition.
4.Separation for Two Years - this is where both spouses have lived apart for a continuous period of at least two years, and both consent to the separation.
5.Separation for Three Years - this is where both spouses have lived apart for a continuous period of at least three years, whether or not the other consents.
6.Failure to Comply with a Decree of Restitution of Conjugal Rights - this is where one spouse fails to comply with a decree of restitution of conjugal rights for a period of one year.
Bars and Defenses to Petition
Certain bars and defenses can prevent a decree of judicial separation:
1.Connivance - this is where the petitioner condoned or connived at the respondent's behavior.
2.Condonation - this is where the petitioner forgave the respondent's behavior, and they resumed cohabitation.
3.Collusion - this is where both parties conspired to fabricate or exaggerate the grounds for separation.
5.Delay - this talks about when an unreasonable delay in bringing the petition can bar the separation. See the case of Williams v Williams (1998) 3 NWLR (Pt. 545) 748, where the court emphasized the importance of proving grounds without collusion or condonation.
Effect of the Decree
A decree of judicial separation has several effects:
1.Marital Status - this is where the marriage is not dissolved and the parties are still legally married but are allowed to live separately.
2.Property Rights - this is where the property rights of the parties remain unaffected.
3.Inheritance Rights - this is where the inheritance rights remain intact unless a will specifies otherwise.
4.Maintenance - this is where the court can make orders for maintenance similar to those in divorce cases.
Divorce
Divorce is the legal dissolution of a marriage by a court. Grounds for divorce in Nigeria are similar to those for judicial separation and are outlined in Sections 15 and 16 of the Matrimonial Causes Act.
Discharge of Decree on Resumption of Cohabitation
If a couple resumes cohabitation after a decree of judicial separation, the decree can be discharged by the following:
1.Application to Court - this is where either party can apply to the court for the discharge of the decree.
2.Evidence of Resumption - this is where the couple must provide evidence that they have resumed cohabitation and intend to live together permanently. See the case of Okafor v Okafor (2012) LPELR-19738(CA) where the court discusses the discharge of a decree upon resumption of cohabitation.
Petition for Judicial Separation
To petition for judicial separation, a spouse must file a petition at the High Court of their domicile. The petition should include:
1.Particulars of Marriage - this will contain the Date, place of marriage, and other relevant details.
2.Grounds for Separation - this will contain clear grounds as per the Matrimonial Causes Act.
3.Details of Children - Information on any children from the marriage would also be made known.
4.Prayer for Relief - Specific reliefs sought, such as maintenance or custody will be mentioned here.
Dissolution of Marriage by Death
Marriage can also be dissolved by the death of either spouse. See section 36 of the Matrimonial Causes Act. Upon the death of a spouse, the following would happen;
1.Termination of Marriage - The marriage will be automatically dissolved.
2.Inheritance Rights - The surviving spouse may have inheritance rights under the Wills Law and Administration of Estates Law.
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